A 

SELECTION  OF  CASES 

ON 

CONSTITUTIONAL  LAW, 


BY 

EUGENE  WAMBAUGH,  LL.D., 

LANGDELL  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY, 


CAMBRIDGE 

HARVARD  UNIVERSITY  PRESS 

1915 


T 


Copyright,  1914,  1915, 
By  Eugene  Wambaugh 


Printed  in  U.S.  A. 


u. 


PREFACE. 

The  wide  interest  in  Constitutional  Law  may  cause  this  volume 
to  reach  some  readers  unacquainted  with  the  case  system  of 
study.  Hence  it  seems  necessary  to  explain  that  this  collection 
of  cases  is  intended  not  to  accompany  a  treatise  but  to  serve  as 
the  basis  for  independent  work.  Before  each  class  exercise  the 
student  is  expected  to  master  fifteen  or  twenty  pages,  fitting  him- 
self to  state  how  the  problems  arose  and  to  express  clearly  the 
doctrines  necessarily  involved  in  the  decisions.  There  are  several 
methods  of  studying  cases  effectively.  One  successful  method  is 
to  mark  in  distinctive  ways  the  essential  facts  of  each  case,  the 
passages  indicating  the  points  upon  which  the  decision  turned, 
and  other  passages  worthy  of  comment,  and  then  to  place  at  the 
beginning  of  the  case  a  short  syllaV  is,  giving  in  a  sentence  or 
two  the  reader's  own  phrasing  of  the  ratio  decidendi.  Thus  before 
work  in  the  classroom  the  student  juts  much  of  himself  into  the 
book.  The  margins  permit  making  notes  of  classroom  discussion. 
Besides,  if  there  be  time  and  inclination  for  further  study,  by 
inserting  an  occasional  sheet  of  interleaving  paper  the  volume 
may  be  enriched  with  matter  derived  from  cases  cited  in  the  foot- 
notes or  discovered  by  the  student  himself.  There  is  no  reason 
why  use  should  not  be  made  of  digests,  treatises,  and  other  aids 
to  investigation;  and  with  or  without  those  collateral  aids  the 
volume  may  be  made  an  adequate  record  of  the  student's  work 
and  the  basis  for  that  short  treatise  which  many  a  student  pre- 
pares for  himself.  It  is  no  waste  to  annotate  a  volume  in  the  way 
described.  Thus  grew  Coke's  First  Institute,  known  even  to 
laymen  as  Coke  upon  Littleton;  and  the  permanent  record  of 
either  a  student's  or  a  lawyer's  work  in  Constitutional  Law  may 
well  take  the  form  of  annotations  upon  decisions. 

The  literature  is  so  vast  that  this  collection  presents  only  the 
famous  cases  and  such  of  the  others  as  may  serve  the  ordinary 
purposes  of  the  classroom.  The  reader  wdth  scholarly  tastes  is 
expected,  as  has  already  been  indicated,  to  make  investigations 


iv  PREFACE. 

of  his  own;  and  to  that  end  he  should  search  the  original  reports 
and  make  large  use  of  the  celebrated  collection  which  for  twenty 
years  formed  the  basis  of  the  instruction  at  this  Law  School  — 
Thayer's  Cases  on  Constitutional  Law. 

In  editing  the  cases,  new  statements  have  usually  been  prepared, 
and,  save  as  other^\ase  indicated,  arguments  of  counsel  have  been 
omitted.  Omissions  in  opinions  have  been  indicated  by  dots. 
In  the  first  chapter  of  Book  I.  an  attempt  has  been  made  to  repro- 
duce punctuation  and  capitalization  exactly,  to  the  end  that  the 
reader  may  ascertain  what  importance  attaches  to  changes  in  capi- 
talizing Constitution,  Congress,  and  other  words.  The  same 
attempt  has  been  made  in  printing  the  Articles  of  Confederation 
and  the  Constitution;  and  it  is  hoped  that  the  student  will 
examine  those  documents  wnth  unusual  care,  ascertaining  for 
himself  whether  the  Constitution  was  a  revision  of  the  Articles, 
and  forming  the  habit  of  beginning  every  constitutional  investi- 
gation by  examining  the  words,  context,  and  origin  of  the 
pertinent  provision  of  the  Constitution. 

It  is  pleasant  to  recall  that  the  year  in  which  this  volume 
appears  marks  the  completion  of  a  century  and  a  quarter  of 
active  service  by  the  United  States  Supreme  Court,  and  that 
consequently  this  is  an  appropriate  time  to  publish  a  collection 
of  cases  which  aims  to  promote  intelligent  appreciation  of  the 
way  in  which  the  labors  of  that  court  have  developed  the  chief 
contribution  of  our  country  to  law  and  to  the  science  of  gov- 
ernment —  the  Constitutional  Law  of  the  United  States. 

Eugene  Wambaugh. 

Law  School  of  Harvard  University, 
April  9,  1915. 


TABLE   OF   SUBJECTS. 

Page 

Akticles  of  Coxfederation IX 

COXSTITUTION   OF    THE   UxiTED    StATES Xvi 

BOOK  I. 

IXTRODUCTORY   ToPICS. 

Chapter  I.  The  Distinction  bet^t:en  Legislattv'e,  Execu- 
tive,  AND   JrDICL\L   POTVTIRS       1 

Chapter  II.  Federal  Government:  The  Nation  and  the 
States ^^'^ 

CiL\PTER  III.  The  District  of  Columbl\,  the  Territories, 
the  Insl-l-\r  Possessions,  and  Kindred  Topics:  or  Quasi- 
Imperial  Government 188 

BOOK  II. 

.    Some  Provisions  Protecting  the  Individual  Against  the  State 

or  the  Nation. 

Chapter      I.    The  Contract  Clause     269 

Chapter    II.    Ex  Post  Facto  Laws 425 

Chapter  III.     Some  Topics  in  the  First  Ten  A^mendments: 

The  Federal  Bill  of  Rights 469 

Section    I.     Questions  under  State  Laio  , 469 

Section  II.     Questions  not  under  State  Law 477 

BOOK  III. 

Some  Provisions  Protecting  the  Individual  and  Simultaneously 
Promoting  Nationalism. 

Chapter      I.     Slavery  and  In\-oluntary  Servitude 491 

Chapter  II.  The  Fourteenth  Amendment  and  Kindred 
Topics:  Citizens  of  the  United  States;  Their  Privileges 
OR  Immunities;  and  Due  Process  of  Law  and  Equal  Pro- 
tection of  the  Laws 524 

Section      I.     Citizens  of  the  United  States  and  Some  of  their 
Privileges  or  Immunities 524 

V 


VI  TABLE    OF    SUBJECTS. 

Page 

Section    II.     Privileges  and  Immunities  and  Due  Process  as 

Related  to  Procedure 564 

Section  III.     The  Fourteenth  Amendment  and  Race  Discrimi- 
nation    617 

Section  I"\^     The  Fourteenth  Amendment  and  Police  Power    .  651 

Section     Y.     The  Fourteenth  Amendment  and  Public  Callings  742 

Section  VI.     The  Fourteenth  Amendment  and  Taxation  ...  763 

Chapter  III.     The  Fifteenth  Amendment 788 

BOOK  IV. 

Some  Provisions  Promoting  Nationalism. 

Chapter      I.     Express   Provisions   on  State  and   National 

Tax.\tion 793 

Chapter    II.     Mont:y 842 

Chapter  III.     The  Commerce  Clause  and  Kindred  Topics    .  867 

Section    I.     Decisions  before  the  Close  of  the  Civil  War    ...  867 

Section  II.    Decisions  since  the  Close  of  the  Civil  War     ...  934 


Index 


1067 


TABLE   OF  CASES. 

(IN  THE  FOUR  BOOKS.) 


Page 

Ableman  v.  Booth  135 
Addvston  Pipe  and  Steel  Co.  v.  United 

States  1039 

American  Insurance  Co.  v.  Canter  191 

American  Publishing  Co.  v.  Fisher  227 
American  School  of  Magnetic  Healing 

t.  McAnnnlty  82 
American  Smelting  &  Refining  Co.   v. 

Colorado  418 

Bailey  v.  Alabama  520 
Baltimore   &   Susquehanna   R.   Co.   r. 

Nesbit  332 

Barbier  v.  Connolly  656 

Barron  ».  Baltimore  469 

Bartemeyer  v.  Iowa  651 

Beers  v.  Arkansas  338 

Binns  v.  United  States  249 
Bowman   v.   Chicago   &   Northwestern 

Ry.  Co.  1006 

Bradwell  v.  The  State  537 

Bronson  v.  Kinzie  322 

Brown  u.  Maryland  886 

Butler  V.  Pennsylvania  335 

Calder  v.  Bull  425 

Callan  v.  Wilson  210 

Campbell  i-.  Hall  16 

Cannon  r.  New  Orleans  812 

Central  Land  Co.  v.  Laidley  396 

Central  Lumber  Co.  i'.  South  Dakota  721 

Charles  River  Bridge  i'.  Warren  Bridge  314 

Cherokee  Nation  v.  Georgia  196 

Chicago  V.  Sturges  711 

Chisholm  r.  Georgia  104 

Christ  Church  v.  Philadelphia  340 

Civil  Rights  Cases  634 

Claflin  B.  Hoiiseman  154 

Clark's  Case  3 

Clyatt  !;.  United  States  513 

Coe  11.  Errol  981 

Cohens  v.  Virginia  130 

Collector  v.  Day  148 

Conway  c.  Taylor  930 
Cooley  I'.  Board  of  Wardens  of  Port  of 

Philadelphia  '  913 

Coppage  t.  Kansas  735 

Coyle  I'.  Smith  184 

Craig  V.  Missouri                                        .  842 

Crutcher  v.  Kentucky  1026 

Daniel  Ball,  The  946 

Dartmouth  College  i'.  Woodward  279 

Da\'idson  r.  New  Orleans  577 

Debs,  In  re  1030 

Den,  d.  Murray,  v.  Hoboken  L.  &  I.  Co.  564. 

Downes  v.  BidweU  229 

Duke  of  York's  Claim  1 

Eilenbecker   t.   District  Court  of   Ply- 
mouth County  595 
Elk  !•.  Wilkins  550 
Emplojers'  Liability  Cases  1054 
Eubank  c.  Richmond  718 


Page 

Fleming  v.  Page  201 

Fletcher  v.  Peck  269 

Foster  v.  Davenport  928 

Foster  v.  Neilson  38 

Fox  !J.  State  of  Ohio  846 

Fraternal  Mystic  Circle  s.  Snyder  422 

Garland,  Ex  parte  433 

Gassies  i\  Ballon  524 

Gelpcke  v.  Dubuque  342 

Geofroy  v.  Riggs  215 

German  Alliance  Ins.  Co.  v.  Lewis  756 

Gibbons  v.  Ogden  867 

Green  i'.  Biddle  293 

Greenwood  v.  Freight  Co.  381 

Gunn  n.  Barry  359 

Gut  I'.  The  State  437 

Hall  V.  De  Cuir  967 
Hanley  i'.   Kansas  City  Southern  Ry. 

Co.  1042 

Hawaii  v.  Mankichi  244 

Hawker  v.  New  York  454 

Hawthorne  v.  Calef  346 

Hayburn's  Case  22 

Hepburn  v.  EUzey  188 

Hodges  V.  United  States  516 

Holden  i'.  Hardy  686 

Holhngsworth  v.  Virginia  111 

Holmes  v,  Walton  21 

Hopt  !).  Utah  447 
Houston,  East  &  West  Texas  Ry.  Co. 

V.  United  States  1060 

Hurtado  v.  California  587 

Hylton  c.  United  States  793 

International  Harvester  Co.  v.  Ken- 
tucky "27 

International  Harvester  Co.  v.  Mis- 
souri 724 

Jacobson  t.  Massachusetts  694 

Jeffrey  Manufacturing  Co.  v.  Blagg  730 

Kansas  v.  Colorado  176 

Kawananakoa  n.  Polyblank  263' 

Kendall  v.  United  States  42 
Kennard  t.  Louisiana  ex  rel.  Morgan         574 

Kilbourn  v.  Thompson  __"2 

Kirtland  v.  Hotchkiss  768 

Knowlton  r.  Moore  826 

Kohl  V.  United  States  151 

Kring  V.  Missouri  439 

Lawton  v.  Steele  680 

Legal  Tender  Cases  849 

Leisy  i-.  Hardin  1010 

License  Tax  Cases  793 

Ling  Su  Fan  v.  United  States  864 

Loan  Association  v.  Topeka  763 

Lochner  v.  New  York  701 

Lord  V.  Steamship  Company  979 

Lottery  Case  1046 

Low  V.  Austin  950 

Luther  v.  Borden  *" 


Vlll 


TABLE   OF   CASES. 


jMcCready  v.  Virginia 

McCulloch  II.  Maryland 

McCuIlough  V.  Virginia 

Magoun  v.  Illinois  Trust  and  Savings 

Bank 
Marbury  r.  Madison 
Martin  i'.  Hunter's  Lessee 
Martin  v.  Mott 

Maryland  t'.  Baltimore  &  Ohio  R.  Co. 
Maxwell  r.  Dow 
Maynard  i'.  Hill 
Medley,  Petitioner 
Milligan,  Ex  parte 
Minneapolis    &    St.   Louis    Ry.  Co.    v. 

Beckwith 
Minor  v.  Happersett 
Mississippi  i'.  Johnson 
Missouri  v.  Lewis 
Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

May 
Moore  v.  Illinois 
Morgan's  Steamship   Co.   v.   Louisiana 

Board  of  Health 
Morley  v.  L.  S.  &  M.  S.  Ry.  Co. 
Muglcr  V.  Kansas 

Muhlker  v.  New  York  &  Harlem  R.  Co. 
Mumma  v.  Potomac  Company 
Munn  r.  Illinois 
Murphy  v.  California 
Miu-ray  v.  Charleston 
Muskrat  v.  United  States 

Nathan  v.  Louisiana 

National  Bank  i'.  County  of  Yankton 

Neagle,  In  re 

New  Jersey  i'.  Wilson 

New  Orleans  v.  Winter 

Newton  v.  Commissioners 

New  York  v.  Miln 

Nicol  V.  Ames 

Noble  State  Bank  v.  Haskell 

Norwood  V.  Baker 

Ogden  r.  Saunders 
Osborn  v.  Nicholson 

Pacific  States  T.  &  T.  Co.  v.  Oregon 

Patton  !'.  Brady 

Paul  !'.  Virginia 

Pecte  V.  Morgan 

Penniman's  Case 

Pennsylvania    Railroad    Co.    (State    of 
New  York,  ex  rel.)  v.  Knight 

Pensacola    Telegraph    Co.    v.    Western 
Union  Telegraph  Co. 

Philadelphia    &    Southern    Steamship 
Co.  t.  Pennsylvania 

Plessy  V.  Ferguson 

Poindexter  v.  Greenhow 

Pollock   V.   Farmers'   Loan  and   Trust 
Co. 

Powell  I.  Pennsylvania 

Presser  v.  Illinois 

Prize  Cases 

Proclamations 

Prohibitions  del  Roy 

Providence  Bank  r.  Billings 

Pullman's  Palace  Car  Co.  t>.  Pennsyl- 
vania 

QuoDg  Wing  t.  Kirkondall 


Page 
547 
119 
406 

771 

23 

112 

33 

32.5 

600 

387 

449 

58 

676 

541 

66 

582 

693 
474 

985 
392 
665 
412 
312 
742 
714 
365 
93 

911 
207 
15S 
276 
190 
369 
900 
822 
707 
776 

297 
506 

99 
837 
942 
811 
378 

1051 

971 

997 
645 
8G0 

817 

672 

556 

55 

.5 

4 
308 

1020 


Pagb 

Rahrer,  In  re  1015 

Railroad  Company  v.  Fuller  958 

Railroad  Company  v.  McClure  351 

Rapier,  In  re  483 

Rassmussen  v.  United  States  254 

Rex  I'.  Cutbush  14 

Reynolds  i'.  United  States  478 

Robertson  v.  Baldwin  509 

Rooney  v.  North  Dakota  463 

Ross,  In  re  222 

Ross  V.  Oregon  465 

Salt  Company  v.  East  Saginaw  '  353 

Santiago  v.  Nogueras  265 

Satterlee  ti.  Matthewson  304 

Scott  V.  Sandford  491 

Sherlock  r.  Alhng  964 

Slaughter-House  Cases  625 

Smith  V.  Maryland  925 

Smyth  V.  Ames  751 

Snyder  v.  Bettman  164 

South  Carolina  v.  United  States  169 

Springer  i'.  United  States  815 

State  Freight  Tax,  Case  of  the  953 

State  Tonnage  Tax  Cases  808 

Steamship  Company  v.  Portwardens  934 

Stone  V.  Mississippi  374 

Strauder  v.  West  Virginia  623 

Sturges  I'.  Crowninshield  287 

Terry  v.  Anderson  362 

Texas  i.  White  141 

Thompson  v.  Missouri  460 

Thompson  v.  Utah  457 

Trade-Mark  Cases  975 

Twining  v.  New  Jersey  608 

Union     Refrigerator     Transit     Co.     v. 

Kentucky 
United  States  v.  Coombs 
United  States  v.  Cruikshank 
United  States  v.  Evans 
United  States  v.  Ju  Toy 
United  States  v.  Perez 
United  States  v.  Reese 
United  States  v.  Rio  Grande  Dam  and 

Irrigation  Co. 
United  States  v.  Wong  Iiim  Ark 

Veazie  v.  Moor 
Veazie  Bank  v.  Fenno 
Virginia,  Ex  parte 
Von  Hoffman  v.  Quincy 

Wabash,  St.  Louis  &  Pacific  Ry.  Co. 
V.  Illinois 

Walker  v.  New  Mexico  &  Southern 
Pacific  R.  Co. 

Walker  v.  Sau\'inet 

Walla  Walla  v.  Walla  Walla  Water  Co. 

Wellon  i».  Missouri 

Western  Union  Telegraph  Co.  v.  Pen- 
dleton 

West  River  Bridge  Co.  v.  Dix 

White  V.  Hart 

Willson  V.  Blackbird  Creek  Marsh  Co. 

Wilson  D.  Shaw 

Winthrop  ».  Lechmere 

Woodruff  V.  Parham 


780 
908 
617 
90 
85 
477 


1035 
561 

923 
803 
630 
348 


785    Yick  Wo  t>.  Hopkins 


991 

485 
572 
401 
960 

1003 
329 
356 
899 
259 
7 
936 

659 


[ARTICLES  OF  CONFEDERATION.] 

To  all  to  Whom 

these  Presents  shall  come,  we  the  under  signed  Delegates  of  the  States 
affixed  to  our  Names  send  greeting.  Whereas  the  Delegates  of  the  United 
States  of  America  in  Congress  assembled  did  on  the  fifteenth  day  of  No- 
vember in  the  Year  of  Our  Lord  One  thousand  seven  Hundred  and  Seventy 
seven,  and  in  the  second  Year  of  the  Independence  of  America  agree  to 
certain  articles  of  Confederation  and  perpetual  Union  between  the  States 
of  Newhampshire,  Massachusetts-bay,  Rhodeisland  and  Providence  Plan- 
tations, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North-Carohna,  South-CaroUna,  and  Georgia  in  the 
Words  following,  viz.  "  Articles  of  Confederation  and  perpetual 
Union  between  the  States  of  Newhampshire,  Massachusetts-bay,  Rhode- 
island  and  Providence  Plantations,  Connecticut,  New- York,  New- Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North-Carolina,  South- 
Carolina  and  Georgia. 

Article  I.  The  Stile  of  this  confederacy  shall  be  "  The  United 
States  of  America." 

Article  II.  Each  state  retains  its  sovereignty,  freedom  and  inde- 
pendence, and  every  Power,  Jurisdiction  and  right,  which  is  not  by  this 
confederation  expressly  delegated  to  the  United  States,  in  Congress  as- 
sembled. 

Article  III.  The  said  states  hereby  severally  enter  into  a  firm 
league  of  friendship  ^vith  each  other,  for  their  common  defence,  the  se- 
curity of  their  Liberties,  and  their  mutual  and  general  welfare,  binding 
themselves  to  assist  each  other,  against  all  force  offered  to,  or  attacks 
made  upon  them,  or  any  of  them,  on  account  of  rehgion,  sovereignty,  trade, 
or  any  other  pretence  whatever. 

Article  IV.  The  better  to  secure  and  perpetuate  mutual  friendsliip 
and  intercourse  among  the  people  of  the  different  states  in  this  union,  the 
free  inhabitants  of  each  of  these  states,  paupers,  vagabonds,  and  fugitives 
from  Justice  excepted,  shall  be  entitled  to  all  privileges  and  immunities 
of  free  citizens  in  the  several  states;  and  the  people  of  each  state  shall 
have  free  ingress  and  regress  to  and  from  any  other  state,  and  shall  enjoy 
therein  all  the  pri\dleges  of  trade  and  commerce,  subject  to  the  same  duties, 
impositions  and  restrictions  as  the  inhabitants  thereof  respectively,  pro- 
vided that  such  restriction  shall  not  extend  so  far  as  to  prevent  the  removal 
of  property  imported  into  any  state,  to  any  other  state  of  wliich  the 
Owner  is  an  inhabitant;  provided  also  that  no  unposition,  duties  or 
restriction  shall  be  laid  by  any  state,  on  the  property  of  the  united  states, 
or  either  of  them. 

If  any  Person  guilty  of,  or  charged  with  treason,  felony,  or  other 
high  misdemeanor  in  any  state,  shall  flee  from  Justice,  and  be  found  in 
any  of  the  united  states,  he  shall  upon  demand  of  the  Governor  or  execu- 
tive power,  of  the  state  from  which  he  fled,  be  dehvered  up  and  removed 
to  the  state  having  jurisdiction  of  his  offence. 


X  ARTICLES    OF   CONFEDERATION. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to  the  records, 
acts  and  judicial  proceedings  of  the  courts  and  magistrates  of  every  other 
state. 

Article  V.  For  the  more  convenient  management  of  the  general 
interest  of  the  united  states,  delegates  shall  be  annuallj^  appointed  in  such 
manner  as  the  legislature  of  each  state  shall  direct,  to  meet  in  Congress 
on  the  first  Monday  in  November,  in  every  year,  with  a  power  reserved 
to  each  state,  to  recal  its  delegates,  or  any  of  them,  at  any  time  within 
the  year,  and  to  send  others  in  their  stead,  for  the  remainder  of  the  Year. 

No  state  shall  be  represented  in  Congress  by  less  than  two,  nor  by  more 
than  seven  Members;  and  no  person  shall  be  capable  of  being  a  delegate 
for  more  than  three  years  in  any  term  of  six  years;  nor  shall  any  person, 
being  a  delegate,  be  capable  of  holding  any  office  under  the  united  states, 
for  which  he,  or  another  for  his  benefit  receives  any  salary,  fees  or  emolu- 
ment of  any  kind. 

Each  state  shall  maintain  its  own  delegates  in  a  meeting  of  the  states, 
and  while  they  act  as  members  of  the  coimiiittee  of  the  states. 

In  determining  questions  in  the  united  states,  in  Congress  assembled, 
each  state  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  congress  shall  not  be  impeached  or 
questioned  in  any  Court,  or  place  out  of  Congress,  and  the  members  of 
Congress  shall  be  protected  in  their  persons  from  arrests  and  imprison- 
ments, during  the  time  of  their  going  to  and  from,  and  attendance  on  con- 
gress, except  for  treason,  felony,  or  breach  of  the  peace. 

Article  VI.  No  state  without  the  Consent  of  the  united  states  in 
congress  assembled,  shall  send  any  embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference,  agreement,  alliance  or  treatj''  with  any 
King  prince  or  state;  nor  shall  any  person  holding  any  office  of  profit  or 
trust  under  the  united  states,  or  any  of  them,  accept  of  any  present, 
emolument,  office  or  title  of  any  kind  whatever  from  any  king,  prince  or 
foreign  state;  nor  shall  the  united  states  in  congress  assembled,  or  any 
of  them,  grant  any  title  of  nobility. 

No  two  or  more  states  shall  enter  into  any  treaty,  confederation  or 
alliance  whatever  between  them,  without  the  consent  of  the  united  states  in 
congress  assembled,  specifying  accurately  the  purpose  for  which  the  same 
is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties,  wliich  may  interfere  with  any 
stipulations  in  treaties,  entered  into  by  the  imited  states  in  congress  as- 
sembled, with  any  king,  prince  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  congress,  to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  state,  except 
such  numl)er  only,  as  shall  be  deemed  necessary  by  the  united  states  in 
congress  assembled,  for  the  defence  of  such  state,  or  its  trade;  nor  shall 
any  body  of  forces  be  kept  up  by  any  state,  in  time  of  peace,  except  such 
number  only,  as  in  the  judgment  of  the  united  states,  in  congress  assem- 
bled, shall  be  deemed  requisite  to  garrison  the  forts  necessary  for  the 
defence  of  such  state;  but  every  state  shall  always  keep  up  a  well  regu- 
lated and  discijilinod  militia,  sufficiently  armed  and  accoutred,  and  shall 
provide  and  constantly  have  ready  for  use,  in  public  stores,  a  due  number 


ARTICLES    OF   CONFEDERATION.  XI 

of  field  pieces  and  tents,  and  a  proper  quantity  of  arms,  ammunition  and 
camp  equipage. 

No  state  shall  engage  in  any  war  ^\-itliout  the  consent  of  the  united 
states  in  congress  assembled,  unless  such  state  be  actually  invaded  by 
enemies,  or  shall  have  received  certain  ad\dce  of  a  resolution  being  formed 
by  some  nation  of  Indians  to  invade  such  state,  and  the  danger  is  so 
imminent  as  not  to  admit  of  a  delay,  till  the  united  states  in  congress 
assembled  can  be  consulted:  nor  shall  any  state  grant  commissions  to 
any  ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal,  except  it  be 
after  a  declaration  of  war  by  the  united  states  in  congress  assembled,  and 
then  only  against  the  kingdom  or  state  and  the  subjects  thereof,  against 
which  war  has  been  so  declared,  and  under  such  regulations  as  shall  be 
estabUshed  by  the  united  states  in  congress  assembled,  unless  such  state 
be  infested  by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for 
that  occasion,  and  kept  so  long  as  the  danger  shall  continue,  or  until  the 
united  states  in  congress  assembled  shall  determine  otherwise. 

Article  VII.  When  land-forces  are  raised  by  any  state  for  the  com- 
mon defence,  all  officers  of  or  under  the  rank  of  colonel,  shall  be  appointed 
by  the  legislature  of  each  state  respectively  by  whom  such  forces  shall  be 
raised,  or  in  such  manner  as  such  state  shall  direct,  and  all  vacancies  shall 
be  filled  up  by  the  state  which  first  made  the  appointment. 

Article  VIII.  All  charges  of  war,  and  all  other  expences  that  shall 
be  incurred  for  the  common  defence  or  general  welfare,  and  allowed  by 
the  united  states  in  congress  assembled,  shall  be  defrayed  out  of  a  com- 
mon treasury,  which  shall  be  supplied  by  the  several  states,  in  proportion 
to  the  value  of  all  land  within  each  state,  granted  to  or  surveyed  for  any 
Person,  as  such  land  and  the  buildings  and  improvements  thereon  shall 
be  estimated  according  to  such  mode  as  the  united  states  in  congress 
assembled,  shall  from  time  to  time,  direct  and  appoint.  The  taxes  for 
paj-ing  that  proportion  shall  be  laid  and  le\'ied  by  the  authority  and 
direction  of  the  legislatures  of  the  several  states  Tvdthin  the  time  agreed 
upon  by  the  united  states  in  congress  assembled. 

Article  IX.  The  united  states  in  congress  assembled,  shall  have  the 
sole  and  exclusive  right  and  power  of  determining  on  peace  and  war, 
except  in  the  cases  mentioned  in  the  sixth  article  —  of  sending  and  receiv- 
ing ambassadors  —  entering  into  treaties  and  alliances,  pro\'ided  that  no 
treaty  of  commerce  shall  be  made  whereby  the  legislative  power  of  the 
respective  states  shall  be  restrained  from  imposing  such  imposts  and  duties 
on  foreigners,  as  their  own  people  are  subjected  to,  or  from  proliibiting 
the  exportation  or  importation  of  any  species  of  goods  or  commodities 
whatsoever  —  of  estabhshing  rules  for  deciding  in  all  cases,  what  captures 
on  land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken  by  land 
or  naval  forces  in  the  service  of  the  united  states  shall  be  di\'ided  or 
appropriated  —  of  granting  letters  of  marque  and  reprisal  in  times  of 
peace  —  appointing  courts  for  the  trial  of  piracies  and  felonies  committed 
on  the  high  seas  and  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures,  provided  that  no  member  of  con- 
gress shall  be  appointed  a  judge  of  any  of  the  said  courts. 


Xll  ARTICLES    OF    CONFEDERATION. 

The  united  states  in  congress  assembled  shall  also  be  the  last  resort 
on  appeal  in  all  disputes  and  differences  now  subsisting  or  that  hereafter 
may  arise  between  two  or  more  states  concerning  boundary,  jurisdiction 
or  any  other  cause  whatever;  which  authority  shall  always  be  exercised  in 
the  manner  following.  Whenever  the  legislative  or  executive  authority 
or  lawful  agent  of  any  state  in  controversy  with  another  shall  present  a 
petition  to  congress,  stating  the  matter  in  question  and  praying  for  a 
hearing,  notice  thereof  shall  be  given  by  order  of  congress  to  the  legislative 
or  executive  authority  of  the  other  state  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents,  who  shall  then 
be  directed  to  appoint  by  joint  consent,  conunissi oners  or  judges  to  con- 
stitute a  court  for  hearing  and  determining  the  matter  in  question:  but 
if  they  cannot  agree,  congress  shall  name  three  persons  out  of  each  of  the 
united  states,  and  from  the  hst  of  such  persons  each  party  shall  alternately 
strike  out  one,  the  petitioners  beginning,  until  the  number  shall  be  reduced 
to  thirteen;  and  from  that  number  not  less  than  seven,  nor  more  than 
nine  names  as  congress  shall  direct,  shall  in  the  presence  of  congress  be 
drawTi  out  by  lot,  and  the  persons  whose  names  shall  be  so  drawn  or  any 
five  of  them,  shall  be  commissioners  or  judges,  to  hear  and  finally  deter- 
mine the  controversy,  so  always  as  a  major  part  of  the  judges  who  shall 
hear  the  cause  shall  agree  in  the  determination :  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  shewing  reasons,  which 
congress  shall  judge  sufficient,  or  being  present  shall  refuse  to  strike,  the 
congress  shall  proceed  to  nominate  three  persons  out  of  each  state,  and 
the  secretary  of  congress  shall  strike  in  behalf  of  such  party  absent  or 
refusing;  and  the  judgment  and  sentence  of  the  court  to  be  appointed, 
in  the  manner  before  prescribed,  shall  be  final  and  conclusive;  and  if  any 
of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court,  or  to 
appear  or  defend  their  claim  or  cause,  the  court  shall  nevertheless  proceed 
to  pronounce  sentence,  or  judgment,  which  shall  in  like  manner  be  final  and 
decisive,  the  judgment  or  sentence  and  other  proceedings  being  in  either 
case  transmitted  to  congress,  and  lodged  among  the  acts  of  congress 
for  the  security  of  the  parties  concerned:  provided  that  every  com- 
missioner, before  he  sits  in  judgment,  shall  take  an  oath  to  be  adminis- 
tered by  one  of  the  judges  of  the  supreme  or  superior  court  of  the  state, 
where  the  cause  shall  be  tried,  "  well  and  truly  to  hear  and  determine  the 
matter  in  question,  according  to  the  best  of  his  judgment,  Avithout  favour 
affection  or  hope  of  reward:"  provided  also  that  no  state  shall  be 
deprived  of  territory  for  the  benefit  of  the  united  states. 

All  controversies  concerning  the  private  right  of  soil  claimed  under 
different  grants  of  two  or  more  states,  whose  jurisdictions  as  they  may 
respect  such  lands,  and  the  states  which  passed  such  grants  are  adjusted, 
the  said  grants  or  either  of  them  being  at  the  same  time  claimed  to  have 
originated  antecedent  to  such  settlement  of  jurisdiction,  shall  on  the 
petition  of  either  party  to  the  congress  of  the  united  states,  be  finally  de- 
termined as  near  asmayl)e  in  the  same  manner  as  is  before  prescril^ed  for 
deciding  disputes  respecting  territorial  jurisdiction  between  different 
states. 

The  united  states  in  congress  assembled  shall  also  have  the  sole  and 
exclusive  riglit  and  power  of  r(>gulating  the  alloy  and  value  of  coin  struck 
by  their  own  authority,  or  by  that  of  the  respective  states  —  fixing  the 


ARTICLES    OF    CONFEDERATION.  Xlll 

standard  of  weights  and  measures  throughout  the  United  States  —  regu- 
lating the  trade  and  manageing  all  affairs  with  the  Indians,  not  members 
of  any  of  the  states,  provided  that  the  legislative  right  of  any  state  within 
its  own  Hmits  be  not  infringed  or  violated  —  estabhshing  and  regulating 
post-offices  from  one  state  to  another,  throughout  all  the  united  states, 
and  exacting  such  postage  on  the  papers  passing  thro'  the  same  as  may  be 
requisite  to  defray  the  expences  of  the  said  office  —  appointing  all  officers 
of  the  land  forces,  in  the  service  of  the  united  states,  excepting  regimental 
officers  —  appointing  all  the  officers  of  the  naval  forces,  and  commission- 
ing all  officers  whatever  in  the  service  of  the  united  states  —  making  rules 
for  the  government  and  regulation  of  the  said  land  and  naval  forces,  and 
directing  their  operations. 

The  united  states  in  congress  assembled  shall  have  authority  to  appoint 
a  committee,  to  sit  in  the  recess  of  congress,  to  be  denominated  "  A 
Committee  of  the  States,"  and  to  consist  of  one  delegate  from  each  state; 
and  to  appoint  such  other  committees  and  civil  officers  as  may  be  neces- 
sary for  manageing  the  general  affairs  of  the  united  states  under  their 
direction  —  to  appoint  one  of  their  number  to  preside,  provided  that  no 
person  be  allowed  to  serve  m  the  office  of  president  more  than  one  year 
in  any  term  of  three  years;  to  ascertain  the  necessary  sums  of  Money  to 
be  raised  for  the  service  of  the  united  states,  and  to  appropriate  and  apply 
the  same  for  defraying  the  public  expences  —  to  borrow  money,  or  emit 
bills  on  the  credit  of  the  united  states,  transmitting  every  half  year  to  the 
respective  states  an  account  of  the  sums  of  money  so  borrowed  or  emitted, 
—  to  build  and  equip  a  navy  —  to  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  state  for  its  quota,  in  proportion  to 
the  number  of  white  inhabitants  in  such  state;  which  requisition  shall  be 
binding,  and  thereupon  the  legislature  of  each  state  shall  appoint  the 
regimental  officers,  raise  the  men  and  cloath,  arm  and  equip  them  in  a 
soldier  hke  manner,  at  the  expence  of  the  united  states ;  and  the  officers 
and  men  so  cloathed,  armed  and  equipped  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on  by  the  united  states  in  congress 
assembled:  But  if  the  united  states  in  congress  assembled  shall,  on  con- 
sideration of  circumstances  judge  proper  that  any  state  should  not  raise 
men,  or  should  raise  a  smaller  number  than  its  quota,  and  that  any  other 
state  should  raise  a  greater  number  of  men  than  the  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  cloathed,  armed  and  equipped  in 
the  same  manner  as  the  quota  of  such  state,  unless  the  legislature  of  such 
state  shall  judge  that  such  extra  number  cannot  be  safely  spared  out  of 
the  same,  in  which  case  they  shall  raise  officer,  cloath,  arm  and  equip  as 
many  of  such  extra  number  as  they  judge  can  be  safely  spared.  And 
the  officers  and  men  so  cloathed,  armed  and  equipped,  shall  march  to  the 
place  appointed,  and  witliin  the  time  agreed  on  by  the  united  states  in 
congress  assembled. 

The  united  states  in  congress  assembled  shall  never  engage  in  a  war, 
nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into 
any  treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof, 
nor  ascertain  the  sums  and  expences  necessary  for  the  defence  and  welfare 
of  the  united  states,  or  any  of  them,  nor  emit  bills,  nor  borrow  money  on 
the  credit  of  the  united  states,  nor  appropriate  money,  nor  agree  upon  the 
number  of  vessels  of  war,  to  be  built  or  purchased,  or  the  nmnber  of  land 


XIV  ARTICLES    OF    CONFEDERATION. 

or  sea  forces  to  be  raised,  nor  appoint  a  commander  in  chief  of  the  army 
or  navy,  unless  nine  states  assent  to  the  same :  nor  shall  a  question  on 
any  other  point,  except  for  adjourning  from  day  to  day  be  determined, 
unless  by  the  votes  of  a  majority  of  the  united  states  in  congress  assembled. 
The  congress  of  the  united  states  shall  have  power  to  adjourn  to  any 
time  within  the  year,  and  to  any  place  within  the  united  states,  so  that 
no  period  of  adjourmnent  be  for  a  longer  duration  than  the  space  of  six 
months,  and  shall  pubhsh  the  Journal  of  their  proceedings  monthly, 
except  such  parts  thereof  relating  to  treaties,  aUiances  or  mihtary  opera- 
tions, as  in  their  judgment  require  secrecy;  and  the  yeas  and  nays  of  the 
delegates  of  each  state  on  any  question  shall  be  entered  on  the  Journal, 
when  it  is  desired  by  any  delegate;  and  the  delegates  of  a  state,  or  any  of 
them,  at  his  or  their  request  shall  be  furnished  with  a  transcript  of  the 
said  Journal,  except  such  parts  as  are  above  excepted,  to  lay  before  the 
legislatures  of  the  several  states. 

Article  X.  The  committee  of  the  states,  or  any  nine  of  them,  shall 
be  authorized  to  execute,  in  the  recess  of  congress,  such  of  the  powers  of 
congress  as  the  united  states  in  congress  assembled,  by  the  consent  of  nine 
states,  shall  from  time  to  time  think  expedient  to  vest  them  with;  pro- 
vided that  no  power  be  delegated  to  the  said  committee,  for  the  exercise 
of  which,  by  the  articles  of  confederation,  the  voice  of  nine  states  in  the 
congress  of  the  united  states  assembled  is  requisite. 

Article  XI.  Canada  acceding  to  this  confederation,  and  joining  in 
the  measures  of  the  united  states,  shall  be  admitted  into,  and  entitled  to 
all  the  advantages  of  this  union:  but  no  other  colony  shall  be  admitted 
into  the  same,  unless  such  admission  be  agreed  to  by  nine  states. 

Article  XII.  All  bills  of  credit  emitted,  monies  borrowed  and  debts 
contracted  bj'',  or  under  the  authority  of  congress,  before  the  assembling 
of  the  united  states,  in  pursuance  of  the  present  confederation,  shall  be 
deemed  and  considered  as  a  charge  against  the  united  states,  for  payment 
and  satisfaction  whereof  the  said  united  states,  and  the  pubhc  faith  are 
hereby  solemnly  pledged. 

Article  XIII.  Every  state  shall  abide  by  the  determinations  of  the 
united  states  in  congress  assembled,  on  all  questions  which  by  this  con- 
federation are  submitted  to  them.  And  the  Articles  of  this  confederation 
shall  be  inviolal)ly  observed  by  every  state,  and  the  union  shall  be  per- 
petual; nor  shall  any  alteration  at  any  time  hereafter  be  made  in  any  of 
them;  unless  such  alteration  be  agreed  to  in  a  congress  of  the  united 
8tat<\s,  and  be  afterwards  confirmed  by  the  legislatures  of  every  state. 

And  Whereas  it  hath  pleased  the  Great  Governor  of  the  World  to 
incline  the  hearts  of  tlie  legislatures  we  respectively  represent  in  congress, 
to  appro\c  of,  and  to  authorize  us  to  ratify  the  said  articles  of  confedera- 
tion and  perpetual  union,  know  ye  that  we  the  undersigned  delegates, 
by  virtue  of  the  power  and  authority  to  us  given  for  that  purpose,  do  by 
these  presents,  in  the  name  and  in  behalf  of  our  respective  constituents, 
fully  and  entirely  ratify  and  confirm  each  and  every  of  the  said  articles  of 
confederation  and  ])erpetual  union,  and  all  and  singular  the  matters  and 
things  therein  contained:  And  we  do  further  solenmly  plight  and  engage 
the  faith  of  our  respective  constituents,  that  they  shall  abide  by  the 


ARTICLES    OF   CONFEDERATION. 


XV 


determinations  of  the  united  states  in  congress  assembled,  on  all  questions, 
which  by  the  said  confederation  are  submitted  to  them.  And  that  the 
articles  thereof  shall  be  inviolably  observed  by  the  states  we  respectively 
represent,  and  that  the  union  shall  be  perpetual.  In  witness  whereof 
we  have  hereunto  set  our  hands  in  Congress.  Done  at  Pliiladelphia  in 
the  state  of  Pennsylvania  the  ninth  Day  of  July  in  the  Year  of  our  Lord 
one  Thousand  seven  Hundred  and  Seventy  eight,  and  in  the  tliird  year  of 
the  independence  of  America. ^ 

on  the  part  & 
behalf  of  the 
State  of  New 
Hampshire 


On  the  part  & 
behalf  of  the 
State  of  Dela- 


on  the  part  and 
behalf    of   the 
State  of  Mary- ' 
land 


On  the  Part  and 
Behalf  of  the 
State  of  Vir- 
ginia 

on  the  part  and 
Behalf  of  the 
State  _  of  No. 
Carolina 

On  the  part  and 
behalf  of  the 
State  of  South- 
Carolina 


On  the  part  and 
behalf  of  the 
State  of  Geor- 
gia 


Thos  M :  Kean 
Feb  12.  1779 

John  Dickinson, 
May  5th  1779 

Nicholas  Van- 
Dyke, 

John      Hanson 

March  1st  1781 
Daniel  Carroll,  do. 

Richard     Henry 

Lee 
John  Bannister 
Thomas  Adams 
Jno  Harvie 
Francis   Lightfoot 

Lee 
■  John    Penn    July 

21st  1778 

Corns  Harnett 

Jno.  WilUams 

'  Henry  Laurens. 

William     Henry 

Drayton 
Jno.  Mathews 
Richd  Hudson 
Thos.    Heyward 

Junr. 
Jno   Walton   24th 

July  1778 
Edwd.  Telfau-. 
Edwd.      Lang- 
worthy. 


Josiah  Bartlett, 
John     Wentworth 

Jimr  august  8th 

1778 
John  Hancock. 
Samuel  Adams 
Elbridge  Gerry. 
Francis  Dana 
James  Lovell 
Samuel  Holten 


William  EUery 
Henry  Mar  chant 
John  Collins 


Roger  Sherman, 
Samuel    Hunting- 
ton 
Oliver  Wolcott 
Titus  Hosmcr 
Andrew  Stearns 
Jas.  Duane. 
Fras.  Lewis 
Wm  Duer. 
Gouv.  Morris, 


Jno  Witherspoon 
Nath.  Scudder 


Robt  Morris. 
D.aniel  Roberdeau 
Jon.  Bayard  Smith 
William  Clingan 
Joseph  Reed.  22d 
July  1778 


on  the  part  and 
behalf  of  the 
State  of  Mass- 
chusetts  Bay 

On  the  part  and 
behalf  of  the 
State  of  Rhode- 
Island  and  Prov- 
idence Planta- 
tions 

on  the  Part  and 
behalf  of  the 
State  of  Con- 
necticut 

On  the  Part  and 
Behalf  of  the 
State  of  New 
York 

On  the  Part  and 
in  Behalf  of 
the  State  of 
New  Jersey. 
Novr.  26.  1778 

On  the  part  and 
behalf  of  the 
State  of  Penn- 
svlvania 


1    From  the  manuscript  Journal  of  Congress  for  March  1,  1781:  — 

"  According  to  the  order  of  the  day  the  hon'"^  John  Hanson  and  Daniel  Carroll  two  of  the 
delegates  for  the  state  of  Maryland  in  pursuance  of  the  act  of  the  legislature  of  that  state 
entiUed  '  An  Act  to  empower  the  delegates  of  this  state  in  Congress  to  subscribe  and  raUfy 
the  Articles  of  Confederation  '  which  was  read  in  Congress  the  12  of  February  last  and  a  copy 
thereof  entered  on  the  minutes  did  in  behalf  of  the  said  state  of  Maryland  sign  and  ratify  the 
said  articles,  by  which  act  the  Confederation  of  the  United  States  of  America  was  conapleated, 
each  and  every  of  the  thirteen  united  states  from  Newhampsliire  to  Georgia  both  included 
having  adopted  and  confirmed  and  by  their  delegates  in  Congress  ratified  the  same."  Hart  and 
Channing's  American  History  Leaflets,  No.  20,  p.  26;  19  Journals  of  the  Continental  Congress, 
213. —  Ed. 


[CONSTITUTION   OF 
THE   UNITED   STATES   OF  AMERICA.] » 

We  the  People  of  the  United  States,  in  Order  to  form  a  more  perfect 
Union,  establish  Justice,  insure  domestic  Tranquility,  provide  for  the 
common  defence,  promote  the  general  Welfare,  and  secure  the  Blessings 
of  Liberty  to  ourselves  and  our  Posterity,  do  ordain  and  estabUsh  this 
Constitution  for  the  United  States  of  America.^ 

ARTICLE.    I. 

Section.  1.  All  legislative  Powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and  House 
of  Representatives. 

Section.  2.  [1.]  The  House  of  Representatives  shall  be  composed  of 
Members  chosen  every  second  Year  by  the  People  of  the  several  States, 
and  the  Electors  in  each  State  shall  have  the  Qualifications  requisite  for 
Electors  of  the  most  numerous  Branch  of  the  State  Legislature. 

1  Words  and  figures  not  found  in  the  original  are  inclosed  in  brackets:    [  J. 

Passages  that  were  temporary  in  effect,  or  that  have  been  superseded  by  amendments,  are 
inclosed  in  braces:    J    \ . 

In  the  words  "  Article  "  and  "  Section  "  the  original  capitalizes  only  the  first  letter;  and  so 
does  the  engrossed  text  of  the  Articles  of  Confederation. 

The  historical  notes  have  been  compiled  from  Senate  Document  No.  12,  Sixty-third  Congress, 
First  Session,  containing  the  Constitution  and  much  illustrative  matter.  —  Ed. 

1  In  May,  1785,  a  committee  of  Congress  made  a  report  in  favor  of  altering  the  Articles 
of  Confederation. 

In  January,  1786,  the  Legislature  of  Virginia  passed  a  resolution  providing  for  the  appoint- 
ment of  five  commissioners,  who,  or  any  three  of  them,  should  meet  such  commissioners  as  might 
be  appointed  in  the  other  States  of  the  Union,  at  a  time  and  place  to  be  agreed  upon,  to  take 
into  consideration  the  trade  of  the  United  States;  to  consider  how  far  a  uniform  system  in  their 
commercial  regulations  may  be  necessary  to  their  common  interest  and  their  permanent  har- 
mony; and  to  report  to  the  several  States  such  an  act,  relative  to  this  great  object,  as,  when 
ratified  by  them,  will  enable  the  United  States  in  Congress  effectually  to  provide  for  the  same. 
The  Virginia  commissioners,  after  some  correspondence,  fixed  the  first  Monday  in  September  as 
the  time,  and  the  city  of  Annapolis  as  the  place  for  the  meeting,  but  only  four  other  States  were 
represented,  viz:  Delaware,  New  York,  New  Jersey,  and  Pennsylvania.  Commissioners 
appointed  by  Massachusetts,  New  Hampshire,  North  Carolina,  and  Rhode  Island  failed  to 
attend.  The  commissioners  present  agreed  upon  a  report  (drawn  by  Mr.  Hamilton,  of  New 
York),  expressing  their  unanimous  conviction  that  it  might  essentially  tend  to  advance  the 
interests  of  the  Union  if  the  .States  by  which  they  were  respectively  delegated  would  concur,  and 
u.sc  their  endeavors  to  procure  the  concurrence  of  the  other  States,  in  the  appointment  of  com- 
mi.s-sioncrs  to  meet  at  Philailclphia  on  the  second  Monday  of  May  following,  to  take  into  con- 
sideration the  situation  of  the  United  .States;  to  devise  such  further  provisions  as  should  appear 
to  them  necessary  to  render  the  Constitution  of  the  Federal  Government  adciiuato  to  the 
exigencies  of  the  Union;  and  to  report  such  an  act  for  that  purpose  to  the  United  States  in 
Congress  assembled  as,  when  agreed  to  by  them  and  afterwards  confirmed  by  the  Legislatures 
o(  every  State,  would  cfTectually  provide  for  the  same. 

C'ongres.q,  on  February  21,  1787,  adopted  a  resolution  in  favor  of  a  convention,  and 
the  Ix-gi-ilatiireg  of  tho,HO  States  which  had  not  already  done  so  (with  the  exception  of  Rliode 
I.ijnnd)  promptly  apr)ointed  delegates.  On  May  25,  seven  States  having  convened, 
C;ci>r«o  Wn-Hhington,  of  Virginia,  was  unanimously  elected  President,  and  the  consideration  of 
the  proposed  conatitution  was  commenced. 

zvi 


CONSTITUTIOX    OF   THE   UNITED    STATES.  XVU 

[2.]  No  Person  shall  be  a  Representative  who  shall  not  have  attained 
to  the  Age  of  twenty  five  Years,  and  been  seven  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

[3.]  Representatives  and  cUrect  Taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  tliis  Union,  according  to  their 
respective  Numbers,  \  wMch  shall  be  determined  by  adcUng  to  the  whole 
Number  of  free  Persons,  \  including  those  bound  to  Service  for  a  Term  of 
Years,  and  excluding  IncUans  not  taxed,  \  three  fifths  of  all  other  Persons  I . 
The  actual  Enumeration  shall  be  made  witliin  three  Years  after  the  first 
Meeting  of  the  Congress  of  the  United  States,  and  witlun  every  subsequent 
Term  of  ten  Years,  in  such  Manner  as  they  shall  by  Law  direct.  The 
Number  of  Representatives  shah,  not  exceed  one  for  every  thirty  Thousand, 
but  each  State  shall  have  at  Least  one  Representative;  ^and  until  such 
enimieration  shall  be  made,  the  State  of  New  HampsMre  shall  be  entitled 
to  chuse  three,  Massachusetts  eight,  Rhode-Island  and  ProA-idence  Plan- 
tations one,  Connecticut  five,  New- York  six.  New  Jersey  four,  Pennsyl- 
vania eight,  Delaware  one,  Maryland  six,  Virginia  ten.  North  CaroUna 
five.  South  Carohna  five,  and  Georgia  three  \ . 

[•i.]  When  vacancies  happen  in  the  Representation  from  any  State,  the 
Executive  Authority  thereof  shall  issue  Writs  of  Election  to  fill  such  Va- 
cancies. 

[5.]  The  House  of  Representatives  shall  chuse  their  Speaker  and  other 
Officers;  and  shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  [1.]  ^  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  sLx 
Years;  and  each  Senator  shall  have  one  Vote.  \ 

[2.]  ^Immediately  after  they  shall  be  assembled  in  Consequence  of  the 
first  Election,  they  shall  be  cU^^ded  as  equally  as  may  be  into  thi*ee  Classes. 
The  Seats  of  the  Senators  of  the  first  Class  shall  be  vacated  at  the  Expira- 
tion of  the  second  Year,  of  the  second  Class  at  the  Expiration  of  the  fourth 
Year,  and  of  the  third  Class  at  the  Expiration  of  the  sixth  Year,  so  that 
one  third  may  be  chosen  every  second  Year;  and  if  Vacancies  happen  by 
Resignation,  or  otherwise,  dm-ing  the  Recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  Appointments  until 
the  next  Meeting  of  the  Legislature,  which  shall  then  fill  such  Vacancies.  I 

[3.]  No  Person  shall  be  a  Senator  who  shall  not  have  attained  to  the 
Age  of  tloirty  Years,  and  been  nine  Years  a  Citizen  of  the  United  States, 
and  who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  for  which 
he  shall  be  chosen. 

[4.]  The  Vice  President  of  the  United  States  shall  be  President  of  the 
Senate,  but  shall  have  no  Vote,  unless  they  be  equally  di\-ided. 

[5.]  The  Senate  shall  chuse  their  other  Officers,  and  also  a  President 
pro  tempore,  in  the  Absence  of  the  Vice  President,  or  when  he  shall  exer- 
cise the  Office  of  President  of  the  United  States. 

[6.]  The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments. 
When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation.  When 
the  President  of  the  United  States  is  tried,  the  Cliief  Justice  shall  preside: 
And  no  Person  shall  be  convicted  without  the  Concurrence  of  two  thirds 
of  the  ^Members  present. 


X-^iii  CONSTITUTION    OF   THE   UNITED   STATES. 

[7-1  Judgment  in  Cases  of  Impeachment  shall  not  extend  further  than 
to  removal  from  Office,  and  disquaUfication  to  hold  and  enjoy  any  Office 
of  honor,  Trust  or  Profit  under  the  United  States :  but  the  Party  convicted 
shall  nevertheless  be  hable  and  subject  to  Indictment,  Trial,  Judgment 
and  Punislmient,  according  to  Law. 

Section.  4.  [1.]  The  Times,  Places  and  Manner  of  holding  Elections 
for  Senators  and  Representatives,  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  the  Congress  may  at  any  time  by  Law  make  or 
alter  such  Regulations,  except  as  to  the  Places  of  chusing  Senators. 

[2.]  The  Congress  shall  assemble  at  least  once  in  every  Year,  and  such 
^Meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by 
Law  appoint  a  different  Day. 

Section.  5.  [1.]  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  oa^ti  Members,  and  a  Majority  of  each 
shall  constitute  a  Quorum  to  do  Business;  but  a  smaller  Number  may 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the  attendance 
of  absent  Members,  in  such  Manner,  and  under  such  Penalties  as  each 
House  may  provide. 

[2.]  Each  House  may  determine  the  Rules  of  its  Proceedings,  punish 
its  Members  for  Disorderly  Behaviour,  and,  with  the  Concurrence  of  two 
tliirds,  ex^iel  a  Member. 

[3.]  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from  time 
to  time  pubUsh  the  same,  excepting  such  Parts  as  may  in  their  Judgment 
require  Secrecy;  and  the  Yeas  and  Nays  of  the  Members  of  either  House 
on  any  question  shall,  at  the  Desire  of  one  fifth  of  those  Present,  be  entered 
on  the  Journal. 

[4.]  Neither  House,  during  the  Session  of  Congi-ess,  shall,  without  the 
Consent  of  the  other,  adjourn  for  more  than  tliree  days,  nor  to  any  other 
Place  than  that  in  which  the  two  Houses  shall  be  sitting. 

Section.  6.  [1.]  The  Senators  and  Representatives  shall  receive  a 
Compensation  for  their  Services,  to  be  ascertained  by  Law,  and  paid  out 
of  the  Treasury  of  the  United  States.  They  shall  in  all  Cases,  axcept 
Treason,  Felony  and  Breach  of  the  Peace,  be  pri\ileged  from  Arrest  during 
their  Attendance  at  the  Session  of  their  respective  Houses,  and  in  going 
to  and  returning  from  the  same;  and  for  any  Speech  or  Debate  in  either 
House,  they  shall  not  be  questioned  in  any  other  Place. 

[2.]  No  Senator  or  Representative  shall,  during  the  Time  for  wliich  he 
■was  elected,  be  appointed  to  any  ci\il  Office  under  the  Authority  of  the 
United  States,  which  shall  have  been  created,  or  the  Emoluments  whereof 
shall  have  been  encrcased  during  such  time;  and  no  Person  hokUng  any 
Office  under  the  United  States,  shall  be  a  Member  of  either  House  during 
his  Continuance  in  Office. 

Section.  7.  [1.]  AH  Bills  for  raising  Revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose  or  concur  with 
Amendments  as  on  other  Bills. 

[2.]  Evr-ry  Bill  wliich  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  sliall,  Ix-fore  it  become  a  Law,  be  presented  to  the  President 
of  the  United  States;  If  he  approve  he  shall  sign  it,  but  if  not  he  shall  re- 
turn it,  with  his  01)jections  to  that  House  in  which  it  shall  have  originated, 
who  shall  enter  the  Oljjections  at  large  on  their  Journal,  and  proceed  to 
reconsider  it.      If  after  such  Reconsideration  two  tliirds  of  that  House 


CONSTITUTION    OF   THE   UNITED    STATES.  XIX 

shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections, 
to  the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and  if  ap- 
proved by  two  tliirds  of  that  House,  it  shall  become  a  Law.  But  in  all 
such  Cases  the  Votes  of  both  Houses  shall  be  determined  by  yeas  and 
Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the  Bill  shall 
be  entered  on  the  Journal  of  each  House  respectively.  If  any  Bill  shall 
not  be  returned  by  the  President  witliin  ten  Days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  hhn,  the  same  shall  be  a  Law,  in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress  by  their  Adjournment 
prevent  its  Return,  in  wliich  Case  it  shaU  not  be  a  Law. 

[3.]  Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a  ques- 
tion of  Adjournment)  shall  be  presented  to  the  President  of  the  United 
States;  and  before  the  same  shall  take  Effect,  shall  be  approved  by  him, 
or  being  disapproved  by  him,  shall  be  repassed  by  two  tliirds  of  the  Senate 
and  House  of  Representatives,  according  to  the  Rules  and  Limitations 
prescribed  in  the  Case  of  a  Bill. 

Section.  8.  The  Congress  shall  have  Power  [1.]  To  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  pro\ade  for  the 
common  Defence  and  general  Welfare  of  the  United  States;  but  all  Duties, 
Imposts  and  Excises  shall  be  uniform  tlu-oughout  the  United  States; 

[2.]   To  borrow  IVIoney  on  the  crecht  of  the  United  States; 

[3.]  To  regulate  Commerce  vnth  foreign  Nations,  and  among  the  several 
States,  and  "nith  the  Indian  Tribes; 

[4.]  To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws 
on  the  subject  of  Bankruptcies  throughout  the  United  States; 

[.5.]  To  coin  INIoney,  regulate  the  Value  thereof,  and  of  foreign  Coin, 
and  fix  the  Standard  of  Weights  and  Measures; 

[6.]  To  pro\'ide  for  the  Punisliment  of  counterfeiting  the  Securities  and 
current  Coin  of  the  United  States; 

[7.]  To  estabhsh  Post  Offices  and  post  Roads; 

[8.]  To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing 
for  limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  their 
respective  Writings  and  Discoveries; 

[9.]  To  constitute  Tribunals  inferior  to  the  supreme  Court; 

[10.]  To  define  and  punish  Piracies  and  Felonies  committed  on  the  high 
Seas,  and  Offences  against  the  Law  of  Nations; 

[11.]  To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make 
Rules  concerning  Captures  on  Land  and  Water; 

[12.]  To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to 
that  Use  shall  be  for  a  longer  Term  than  two  Years; 

[13.]  To  pro\ade  and  maintain  a  Na\'>^; 

[14.]  To  make  Rules  for  the  Government  and  Regulation  of  the  land 
and  naval  Forces; 

[1.5.]  To  pro\'ide  for  calhng  forth  the  ]MiUtia  to  execute  the  Laws  of  the 
Union,  suppress  Insurrections  and  repel  Inva.sions; 

[16.]  To  pro\nde  for  organizing,  arming,  and  disciplining,  the  Mihtia, 
and  for  governing  such  Part  of  them  as  may  be  employed  in  the  Service  of 
the  United  States,  reser\'ing  to  the  States  respectively,  the  Appointment 
of  the  Officers,  and  the  Authority  of  training  the  ]Mihtia  according  to  the 
discipline  prescribed  by  Congress; 


XX  COXSTITUTIOX    OF   THE   UNITED   STATES. 

[17.]  To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over 
such  District  (not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  par- 
ticular States,  and  the  Acceptance  of  Congress,  become  the  Seat  of  the 
Government  of  the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of  the  State  in  which 
the  same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Ai-senals,  dock- 
Yards,  and  other  needful  BuilcUngs;  —  And 

[18.]  To  make  all  Laws  wliich  shall  be  necessary  and  proper  for  carrying 
into  Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by  this 
Constitution  in  the  Government  of  the  United  States,  or  in  any  Depart- 
ment or  Officer  thereof. 

Section'.  9.  [1.]  ^The  Migration  or  Importation  of  such  Persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a  Tax  or  duty  may  be  imposed  on  such  Importation,  not 
exceeding  ten  dollars  for  each  Person.  \ 

[2.]  The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended, 
unless  when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety  may  re- 
quire it. 

[3.]  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

[4.]  No  Capitation,  or  other  direct.  Tax  shall  be  laid,  unless  in  Propor- 
tion to  the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

[5.]   No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

[6.]  No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or 
Revenue  to  the  Ports  of  one  State  over  those  of  another:  nor  shall  Vessels 
bound  to,  or  from,  one  State,  be  obhged  to  enter,  clear,  or  pay  Duties  in 
another. 

[7.]  No  Money  shall  be  drawm  from  the  Treasury,  but  in  Consequence 
of  Appropriations  made  by  Law;  and  a  regular  Statement  and  Account 
of  the  Receipts  and  Expenditures  of  all  pubhc  IMoney  shall  be  pubhshed 
from  time  to  time. 

[S.]  No  Title  of  Nobility  shall  be  granted  by  the  United  States:  And 
no  Person  hoUling  any  Office  of  Profit  or  Trust  under  them,  shall,  without 
the  Consent  of  the  Congress,  accept  of  any  present,  Emolument,  Office,  or 
Title,  of  any  kind  whatever,  from  any  King,  Prince,  or  foreign  State. 

Section.  10.  [1.]  No  State  shall  enter  into  any  Treaty,  Alhance,  or 
Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin  Money;  emit 
BilLs  of  Credit;  make  any  Thing  but  gold  and  silver  Coin  a  Tender  in  Pay- 
ment of  Del)ts;  pass  any  Bill  of  Attainder,  ex  post  facto  Law,  or  Law 
unpairing  the  Obligation  of  Contracts,  or  grant  any  Title  of  Nobility. 

[2.]  No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Im- 
posts or  Duties  on  Imports  or  Exports,  except  what  may  be  absolutely 
ncce.s.sary  for  executing  its  inspection  Laws:  and  the  net  Produce  of  all 
Duties  and  Imposts,  laid  l)y  any  State  on  Imports  or  Exports,  shall  be  for 
the  Use  of  the  Treasury  of  the  United  States;  and  all  such  Laws  shall  be 
subject  to  the  Revision  and  Controul  of  the  Congress. 

[-1]  No  State  shall,  witliout  tlic  Consent  of  Congress,  lay  any  Duty  of 
Tonnage,  keep  Troo|)s,  or  Ships  of  War  in  time  of  Peace,  enter  into  any 
Agreement  or  Compact  with  another  State,  or  with  a  foreign  Power,  or 
engage  in  War,  unle.s.s  actually  invaded,  or  in  such  imminent  Danger  as 
will  not  admit  of  delay. 


CONSTITUTIOX    OF   THE    UNITED    STATES.  XXI 


ARTICLE.   II. 

Section.  1.  [1.]  The  executive  Power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  Office  during  the  Term 
of  four  Years,  and,  together  vnth  the  Vice  President,  chosen  for  the  same 
Term,  be  elected,  as  follows 

[2.]  Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof 
may  direct,  a  Number  of  Electors,  equal  to  the  whole  Number  of  Senators 
and  Representatives  to  which  the  State  may  be  entitled  in  the  Congress: 
but  no  Senator  or  Representative,  or  Person  holding  an  Office  of  Trust  or 
Profit  under  the  United  States,  shall  be  appointed  an  Elector. 

\  The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot 
for  two  Persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the 
same  State  "vsith  themselves.  And  they  shall  make  a  List  of  all  the  Persons 
voted  for,  and  of  the  Number  of  Votes  for  each;  which  List  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  Seat  of  the  Government  of  the 
United  States,  directed  to  the  President  of  the  Senate.  The  President  of 
the  Senate  shall,  in  the  Presence  of  the  Senate  and  House  of  Representa- 
tives, open  all  the  Certificates,  and  the  Votes  shall  then  be  counted.  The 
Person  ha\'ing  the  greatest  Number  of  Votes  shall  be  the  President,  if  such 
Number  be  a  Majority  of  the  whole  Number  of  Electors  appointed;  and 
if  there  be  more  than  one  who  have  such  Majority,  and  have  an  equal 
Number  of  Votes,  then  the  House  of  Representatives  shall  immediately 
chuse  by  Ballot  one  of  them  for  President;  and  if  no  Person  have  a 
Majority,  then  from  the  five  highest  on  the  List  the  said  House  shall  in 
like  Manner  chuse  the  President.  But  in  chusing  the  President,  the  Votes 
shall  be  taken  by  States,  the  Representation  from  each  State  ha\'ing  one 
Vote;  A  quorum  for  this  Purpose  shall  consist  of  a  Member  or  Members 
from  two  tlfirds  of  the  States,  and  a  jSIajority  of  all  the  States  shall  be 
necessary  to  a  Choice.  In  every  Case,  after  the  Choice  of  the  President, 
the  Person  ha\dng  the  greatest  Number  of  Votes  of  the  Electors  shall 
be  the  Vice  President.  But  if  there  should  remain  two  or  more  who 
have  equal  Votes,  the  Senate  shall  chuse  from  them  by  Ballot  the  Vice 
President.  \ 

[.3.]  The  Congress  may  determine  the  Time  of  chusing  the  Electors,  and 
the  Day  on  wliich  they  shall  give  their  Votes;  wliich  Day  shall  be  the  same 
throughout  the  United  States. 

[4.]  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the  United 
States,  at  the  time  of  the  Adoption  of  tliis  Constitution,  shall  be  ehgible  to 
the  Office  of  President;  neither  shall  any  Person  be  ehgible  to  that  Office 
who  shall  not  have  attained  to  the  Age  of  tliirty  five  Years,  and  been  four- 
teen Years  a  Resident  within  the  United  States. 

[.5.]  In  Case  of  the  Removal  of  the  President  from  Office,  or  of  liis 
Death,  Resignation,  or  Inabihty  to  discharge  the  Powers  and  Duties  of  the 
said  Office,  the  Same  shall  devolve  on  the  Vice  President,  and  the  Congress 
may  by  Law  provide  for  the  Case  of  Removal,  Death,  Resignation  or  In- 
ability, both  of  the  President  and  Vice  President,  declaring  what  Officer 
shall  then  act  as  President,  and  such  Officer  shall  act  accordingly,  until  the 
Disabihty  be  removed,  or  a  President  shall  be  elected. 


XXn  CONSTITUTION    OF   THE    UNITED    STATES. 

[6.]  The  President  shall,  at  stated  Times,  receive  for  bis  Ser\dces,  a 
Compensation,  which  shall  neither  be  encreased  nor  diminished  during 
the  Period  for  which  he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  Period  any  other  Emolument  from  the  United  States,  or  any 
of  them. 

[7.]  Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  fol- 
lowing Oath  or  Affirmation:  —  "  I  do  solenuily  swear  (or  affirm)  that  I  will 
'I  faithfully  execute  the  Office  of  President  of  the  United  States,  and  will 
"  to  the  best  of  my  Ability,  preserve,  protect  and  defend  the  Constitu- 
"tion  of  the  United  States." 

Section.  2.  [1.]  The  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  MiUtia  of  the  several 
States,  when  called  into  the  actual  Service  of  the  United  States;  he  may 
require  the  Opinion,  in  writing,  of  the  principal  Officer  in  each  of  the  exe- 
cutive Departments,  upon  any  Subject  relating  to  the  Duties  of  their  re- 
spective Offices,  and  he  shall  have  Power  to  grant  Reprieves  and  Pardons 
for  Offences  against  the  United  States,  except  in  Cases  of  Impeachment. 

[2.]  He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the 
Senate,  to  make  Treaties,  pro^ided  two  tlairds  of  the  Senators  present 
concur;  and  he  shall  nominate,  and  by  and  with  the  Advice  and  Consent 
of  the  Senate,  shall  appoint  Ambassadors,  other  pubUc  Ministers  and  Con- 
suls, Judges  of  the  supreme  Court,  and  all  other  Officers  of  the  United 
States,  whose  Appointments  are  not  herein  othez-wise  provided  for,  and 
which  shall  be  estabhshed  by  Law:  but  the  Congress  may  by  Law  vest  the 
Appointment  of  such  inferior  Officers,  as  they  think  proper,  in  the  Presi- 
dent alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

[3.]  The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may 
happen  during  the  Recess  of  the  Senate,  by  granting  Commissions  wliich 
shall  expire  at  the  End  of  their  next  Session. 

^  Section.  3.  He  shall  from  time  to  time  give  to  the  Congress  Informa- 
tion of  the  State  of  the  Union,  and  recommend  to  their  Consideration  such 
Measures  as  he  shall  judge  necessary  and  expedient;  he  mav,  on  extraor- 
dinary Occasions,  convene  both  Houses,  or  either  of  them,  and  in  Case  of 
Disagreement  between  them,  with  Respect  to  the  Time  of  Adjournment, 
he  may  adjourn  them  to  such  Time  as  he  shall  tliink  proper;  he  shall  re- 
ceive Ambassadors  and  other  pubhc  Ministers;  he  shall  take  Care  that 
the  Laws  be  faithfully  executed,  and  shall  Commission  all  the  Officers  of 
the  United  States. 

Section.  4.  The  President,  Vice  President,  and  all  civil  Officers  of  the 
United  States,  shall  be  removed  from  Office  on  Impeachment  for,  and  Con- 
viction of,  Treason,  BrilxTv,  or  other  high  Crimes  and  Misdemeanors. 

ARTICLE  III. 

_  Section.  L  The  judicial  Power  of  the  United  States,  shall  be  vested 
m  one  supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may 
from  tune  to  tunc  ordain  and  establish.  The  Judges,  both  of  the  supreme 
and  mfcnor  Courts,  shall  liold  their  Offices  during  good  Beha\iour  and 
shall,  at  stated  Times,  receive  for  their  Services,  a  Compensation,  which 
shall  not  be  diminished  during  their  Contmuance  in  Office. 


CONSTITUTION    OF   THE    UNITED    STATES.  XXIU 

Section.  2.  [1.]  Thejudicial  Power  shall  extend  to  all  Cases,  in  Law 
and  Equity,  arising  under  this  Constitution,  the  Laws  of  the  United 
States,  and  Treaties  made,  or  which  shall  be  made,  under  their  Author- 
ity;— _to_an  £asea  affecting  Ambassadors,  other  pubhc  Ministers  and 
Consuls;  —  to  all  Cases  of  admiralty  and  maritime  Jurisdiction;  —  to 
Controversies  to  which  the  United  States  shall  be  a  Partj^-  —  to  Contro- 
versies between  two  or  more  States;  —  between  a.  State  and  Citizens  of 
another  S_tate;  —  between  Citizens  of  different  States,  —  between  Citizens 
^f  the  same  State  claiming  Lands  under  Grants  of  different~States,  ahxT 
/between  a  State,_or  the  Citizens  thereof,  and  foreign  States,  Citizens  or 
Subjects. 

[2.]  In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and ; 
Consuls,  and  those  in  wliich  a  State  shall  be  Party,  the  supreme  Court  j 
shall  have  original  Jurisdiction.  In  all  the  other  Cases  before  mentioned, !, 
jjie  supreme  Court  shall  have  appellate  Jurisdiction,  both  as  to  Law  and  j 
__Fact^with  such  Exceptions,  and  under  such  Regulations  as  the  Congress] 
shall  make. 

[3.]  The  Trial  of  aU  Crimes,  except  in  Cases  of  Impeaclmient,  shall  be 
by  Jury;  and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes 
shall  have  been  committed;  but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place  or  Places  as  the  Congress  may  by  Law  have 
directed. 

Section.  3.  [1.]  Treason  against  the  United  States,  shall  consist  only 
in  le\ying  War  against  them,  or  in  adhering  to  their  Enemies,  gi^'ing  them 
Aid  and  Comfort.  No  Person  shall  be  con\'icted  of  Treason  unless  on  the 
Testimony  of  two  Witnesses  to  the  same  overt  Act,  or  on  Confession  in 
open  Court. 

[2'.r  Tlie  Congress  shall  have  Power  to  declare  the  Punishment  of  Trea- 
son, but  no  Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  For- 
feiture except  during  the  Life  of  the  Person  attainted. 


ARTICLE.  IV. 

Section.  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to  the 
pubUc  Acts,  Records,  and  judicial  Proceedings  of  every  other  State.  And 
the  Congress  may  by  general  Laws  prescribe  the  IManner  in  wiiich  such 
Acts,  Records  and  Proceedings  shall  be  proved,  and  the  Effect  thereof. 

Section.  2.  [1.]  The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several  States. 

[2.]  A  Person  charged  in  any  State  with  Treason,  Felony,  or  other 
Crime,  who  shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on 
Demand  of  the  executive  Authority  of  the  State  from  wliich  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  ha\'ing  Jurisdiction  of  the  Crime. 

[3.]  \  Xo  Person  held  to  Ser\ace  or  Labour  in  one  State,  under  the  Laws 
thereof,  escaping  into  another,  shall,  in  Consequence  of  any  Law  or  Regu- 
lation therein,  be  discharged  from  such  Service  or  Labour,  but  shall  be 
dehvered  up  on  Claim  of  the  Party  to  whom  such  Ser\'ice  or  Labour  may 
be  due.  \ 

Section.  3.  [1.]  New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or  erected  witliin  the  Juris- 


Xxiv  CONSTITUTION    OF   THE    UNITED    STATES. 

diction  of  any  other  State;  nor  any  State  be  formed  by  the  Junction  of 
two  or  more  States,  or  Parts  of  States,  without  the  Consent  of  the  Legis- 
latures of  the  States  concerned  as  well  as  of  the  Congress. 

[2.]  The  Congress  shall  have  Power  to  dispose  of  and  make  aU  needful 
Rules  and  Regulations  respecting  the  Territory  or  other  Property  belong- 
ing to  the  United  States;  and  notliing  in  tliis  Constitution  shall  be  so  con- 
strued as  to  Prejudice  any  Claims  of  the  United  States,  or  of  any  particular 
State. 

Section.  4.  Tlie  United  States  shall  guarantee  to  every  State  in  this 
Union  a  Republican  Form  of  Government,  and  shall  protect  each  of  them 
against  Invasion;  and  on  Apphcation  of  the  Legislature,  or  of  the  Execu- 
tive (when  the  Legislature  cannot  be  convened)  against  domestic  Violence. 

ARTICLE.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it  neces- 
sary, shall  propose  Amendments  to  this  Constitution,  or,  on  the  Applica- 
tion of  the  Legislatures  of  two  thirds  of  the  several  States,  shall  call  a 
Convention  for  proposing  Amendments,  wliich,  in  either  Case,  shall  be  vahd 
to  all  Intents  and  Purposes,  as  Part  of  this  Constitution,  when  ratified  by 
the  Legislatures  of  tliree  fourths  of  the  several  States,  or  by  Conventions 
in  three  fourths  thereof,  as  the  one  or  the  other  Mode  of  Ratification  may 
be  proposed  by  the  Congress;  Provided  ^that  no  Amendment  wMch  may 
be  made  prior  to  the  Year  One  thousand  eight  hundred  and  eight  shall  in 
any  Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth  Section  of  the 
first  Article;  and^  that  no  State,  without  its  Consent,  shall  be  deprived  of 
its  equal  Suffrage  in  the  Senate. 

ARTICLE.  VI. 

[1.]  All  Debts  contracted  and  Engagements  entered  into,  before  the 
Adoption  of  tliis  Constitution,  shall  be  as  valid  against  the  United  States 
under  this  Constitution,  as  under  the  Confederation. 

[2.]  This  Constitution,  and  the  Laws  of  the  United  States  which  shall 
be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or  which  shall  be 
made,  under  the  Authority  of  the  United  States,  shall  be  the  supreme  Law 
of  the  Land;  and  the  Judges  in  every  State  shall  be  bound  thereby,  any 
Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  notwith- 
standing. 

[3.]  The  Senators  and  Representatives  before  mentioned,  and  the 
Members  of  the  several  State  Legislatures,  and  all  executive  and  judicial 
Officers,  both  of  the  United  States  and  of  the  several  States,  shall  be  bound 
by  Oath  or  Affirmation,  to  support  this  Constitution;  but  no  rehgious 
Test  shall  ever  be  recjuired  as  a  Qualification  to  any  Office  or  public  Trust 
under  the  United  States. 


'  CONSTITUTION    OF   THE    UNITED    STATES. 


XXV 


ARTICLE.  VII. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient 
for  the  Estabhsliment  of  this  Constitution  between  the  States  so  ratifjdng 
the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  the  Seventeenth  Day  of  September 
in  the  Year  of  our  Lord  one  thousand  seven  hundred 
and  Eighty  seven  and  of  the  Independance  of  the 
United  States  of  America  the  Twelfth  In  Witness 
whereof  We  have  hereunto  subscribed  our  names. 

Go  WASHINGTON— 
Presidt  and  deputy  from  Virginia.^ 


Attest 

William  Jackson 

Secretary. 


Delaware. 
'  Geo  :  Read 

Gunning  Bedford  jun 
i  John  Dickinson 

Richard  Bassett 

Jaco:  Broom 

Maryland. 
James  McHenry 
Dan  of  St.  Thos.  Jenifer 
Danl  Carroll 


New  Hampshire. 
f  John  Langdon       ) 
I  Nicholas  Gilman  j 

Massachusetts. 
f  Nathaniel  Gorham 
(  Rufus  King 

Connecticut. 
Wm.  Saml.  Johnson 
Roger  Sher\l\n 


Virginia. 
(  John  Blair — 
(  James  Madison  Jr. 

North  Carolina. 
i  Wm.  Blount 
■^  Richd.  Dobbs  Spaight 
(  Hu  Williamson 

South  Carolina. 

(  J.    RUTLEDGE, 

J  Charles  Cotesworth  Pinckney 
j  Charles  Pinckney 
t  Pierce  Butler. 

Georgia. 
f  William  Few 
j  Abr  Baldwin 


New  York. 
Alexander  Hamilton 

New  Jersey. 
Wil:  Livingston 
David  Brearley 
Wm:  Paterson. 
tJoNA:  Dayton 

Pennsylvania. 

(  B  Franklin 
Thomas  Mifflin 
RoBT.  Morris 
Geo.  Clymer 
Thos.  Fitz  Simons 
Jared  Ingersoll 
James  Wilson. 

^Gouv  Morris 


1  The  Constitution  was  signed  by  all  the  members  present,  except  Elbridge  Gerry,  of  Massa- 
chusetts, and  George  Mason  and  Edmund  Randolph,  of  Virginia. 

The  president  of  the  convention  transmitted  the  Constitution  to  Congress,  with  resolutions 
stating  how  the  proposed  Federal  Government  should  be  put  in  operation,  and  an  explanatory 
letter.  Congress,  on  September  28,  1787,  directed  the  Constitution,  with  accompanying 
documents,  to  "  be  transmitted  to  the  several  Legislatures  in  order  to  be  submitted  to  a  con- 
vention of  delegates  chosen  in  each  State  by  the  people  thereof,  in  conformity  to  the  resolves  of 
the  convention." 

On  March  4,  1789,  the  day  fixed  by  Congress  on  September  13,  1788,  for  beginning  the  opera- 
tions of  the  Government  under  the  Constitution,  it  had  been  ratified  by  the  conventions  of  eleven 


■-tairtiii 


xxvi  AMENDMENTS   TO   THE    CONSTITUTION. 

Articles  in  addition  to  and  Amendment  of  the  Constitution  of  the 
United  States  of  America,  proposed  by  Congress,  and  ratified  by  the  Leg- 
islatures of  the  several  States,  pursuant  to  the  fifth  Article  of  the  original 
Constitution. 

[ARTICLE  I.]i 

Congress  shall  make  no  law  respecting  an  establishment  of  rehgion,  or 
prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of  speech, 
or  of  the  press;  or  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 

[ARTICLE  IL] 

A  well  regulated  MiUtia,  being  necessary  to  the  security  of  a  free  State, 
the  right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

[ARTICLE  III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without  the 
consent  of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be  prescribed 
by  law. 

[ARTICLE  IV.] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated, 
and  no  Warrants  shall  issue,  but  upon  probable  cause,  supported  by  Oath 
or  affirmation,  and  particularly  describing  the  place  to  be  searched,  and 
the  persons  or  things  to  be  seized. 

[ARTICLE  v.] 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
ser\ncc  in  time  of  War  or  public  danger;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall 

States.  It  was  eventually  ratified  by  each  of  the  thirteen  original  States  in  the  following  order: 
Delaware,  Dec.  7,  1787,  yeas  30  (unanimou-s) ;  Pennsylvania,  Dec.  12,  1787,  yeas  4.3,  naya  23; 
New  Jersey,  Dec.  18,  1787,  yeas  38  (unanimous) ;  Georgia,  Jan.  2,  1788,  yeas  26  (unanimous) ; 
Connecticut,  Jan.  9,  1788,  yeas  128,  nays  40;  Massachusetts,  Feb.  6,  178S,  yeas  187,  nays  168; 
Maryland,  Apr.  28,  1788,  yeas  63,  nays  11;  South  Carolina,  May  23,  1788,  yeas  149,  nays  73; 
New  Hampshire,  June  21,  1788,  yeas  57,  nays  46;  Virginia,  June  26,  1788,  yeas  89,  nays  79; 
New  York,  July  26,  1788,  yeas  30,  nays  27;  North  Carolina,  Nov.  21,  1789,  yeas  194,  nays  77; 
Rhode  Island,  May  29,  1790,  yeas  34,  nays  32. 

>  The  first  ten  of  the  articles  of  amendment  (with  two  others  which  were  not  ratified  by  the 
requi.site  number  of  States)  were  suljmittcd  to  the  several  State  legislatures  by  a  resolution  of 
Congress  which  was  pa.s.sed  on  September  2h,  17S0,  at  the  first  session  of  the  First  Congress, 
and  were  ratified  by  the  legislatures  of  the  following  States:  New  Jersey,  Nov.  20,  1789;  Mary- 
land, Dec.  19,  1789;  North  Carolina,  Dec.  22,  1789;  South  Carolina,  Jan.  19,  1790;  New 
Hamp.shirc,  Jan.  2.">,  1790;  Delaware,  Jan.  28,  1790;  Pennsylvania,  Mar.  10,  1790;  New  York, 
Mar.  27,  1790;  Rliode  Lsland,  June  lo,  1790;  Vermont,  Nov.  3,  1791;   Virginia,  Dec.  1.5,  1791. 

The  act.M  of  the  legislature.^  of  the  .States  ratifying  these  amendments  were  transmitted  by  the 
Kovernors  to  the  President,  and  by  him  communicated  to  Congress.  The  legislatures  of  Massa- 
chusctta.  Connecticut,  and  Georgia  do  not  appear  by  the  record  to  have  ratified  them. 


a:\iexdmexts  to  the  constitution.  xxvn 

be  compelled  in  any  criminal  case  to  be  a  vritness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  pubhc  use,  without  just  compensation. 

[ARTICLE  VI.] 

In  aU  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have  been  pre^•iously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  ac- 
cusation; to  be  confronted  with  the  -R-itnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
Assistance  of  Counsel  for  his  defence. 

[ARTICLE  ^TL] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shaU  be  preserved,  and  no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any  Court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

[.ARTICLE  VIIL] 

Excessive  bail  shaU  not  be  requu-ed,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted. 

[.IRTICLE   IX.] 

The  enimieration  in  the  Constitution,  of  certain  rights,  shall  not  be  con- 
strued to  deny  or  disparage  others  retained  by  the  people. 

[ARTICLE  X.] 

The  powers  not  delegated  to  the  I'nited  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectiveh'  or  to 
the  people. 

[ARTICLE  XI.]  1 

The  Judicial  power  of  the  Lnited  States  shall  not  be  construed  to  extend 
to  any  suit  in  law  or  eqtiity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  Citizens  of  another  State,  or  by  Citizens  or  Subjects  of 
any  Foreign  State. 

[ARTICLE  XII.]  2 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by  ballot  for 
President  and  Vice-President,  one  of  whom,  at  least,  shall  not  be  an  in- 

1  The  Eleventh  Amendment  was  submitted  to  the  legislatures  of  the  several  States  by  a 
resolution  of  Congress  passed' Mar.  5,  1794;  and  it  was  declared  by  the  President,  in  a  mes- 
sage to  the  two  Houses  of  Congress,  dated  Jan.  8,  1798,  to  have  been  adopted  by  the  legislatures 
of  three-founhs  of  the  States,  there  being  at  that  time  sixteen  States  in  the  Union. 

-  The  Twelfth  Amendment  was  submitted  to  the  legislatures  of  the  several  States,  there 
being  then  seventeen  States,  by  a  resolution  of  Congress  passed  Dec.  12,  1S03,  and  was  ratified 
by  the  legislatures  of  three-fourths  of  the  States  in  1S04,  according  to  a  proclamation  of  the 
Secretary  of  State  dated  Sept.  25, 1804. 


XXVlll  AMENDMENTS   TO   THE   CONSTITUTION. 

habitant  of  the  same  state  with  themselves;  they  shall  name  in  their  bal- 
lots the  person  voted  for  as  President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice-President,  and  they  shall  make  distinct  Usts  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for  as  Vice-President,  and 
of  the  number  of  votes  for  each,  which  hsts  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the  United  States,  directed 
to  the  President  of  the  Senate;  —  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the  certif- 
icates and  the  votes  shall  then  be  counted;  —  The  person  having  the 
greatest  number  of  votes  for  President,  shall  be  the  President,  if  such  num- 
ber be  a  majority  of  the  whole  number  of  Electors  appointed;  and  if  no 
person  have  such  majority,  then  from  the  persons  having  the  highest  num- 
bers not  exceeding  three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by  ballot,  the  Presi- 
dent.    But  in  choosing  the  President,  the  votes  shall  be  taken  by  states, 
the  representation  from  each  state  having  one  vote;   a  quorum  for  tliis 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.     And  if  the 
House  of  Representatives  shall  not  choose  a  President  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March  next 
following,  then  the  Vice-President  shall  act  as  President,  as  in  the  case  of 
the  death  or  other  constitutional  disabiUty  of  the  President.  —  The  person 
ha\'ing  tlie_  greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of  Electors 
appointed,  and  if  no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  hst,  the  Senate  shall  choose  the  Vice-President;  a  quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number  of  Senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a  choice.     But 
no  person  constitutionally  ineligible  to  the  office  of  President  shall  be  eligi- 
ble to  that  of  Vice-President  of  the  United  States. 

Article  XIII. i 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their  jurisdic- 
tion. Section  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

»  The  Thirteenth  Amendment  was  submitted  to  the  legislatures  of  the  several  States,  there 
being  then  thirty-six  States,  by  a  resolution  of  Congress  passed  Feb.  1,  186.5,  and  was  ratified, 
according  to  a  proclamation  of  tlie  Secretary  of  State,  dated  Dec.  18,  1865,  by  the  legislatures  of 
the  following  stales:  Illinois,  Feb.  1.  1865;  Rhode  Island,  Feb.  2,  18G5;  Michigan,  Feb  2, 
1865;  Maryland,  Feb.  3,  1865;  New  York,  Feb.  3,  1865;  West  Virginia,  Feb.  3.  1865i 
Maine,  Feb.  7,  1865;  Kansas,  Feb.  7,  1865;  Massachusetts,  Feb.  8,  1865;  Pennsyl- 
vania, Feb.  8,  1865;  Virginia.  Feb.  9,  1865;  Ohio,  Feb.  10,  1865;  Mi.ssouri,  Feb.  10  1865- 
In.liana.  Feb.  16.  1865;  Nevada,  Feb.  16,  1865;  Louisiana,  Feb.  17,  1865;  Minnesota,' 
Feb.  23,  1865;  Wisconsin,  Mar.  1,  1865;  Vermont,  Mar.  9, •1865;  Tennessee,  Apr  7,  1865- 
Arkan.sas.  Apr.  20,  1865;  Connecticut,  May  5.  1865;  Now  Hampshire,  July  1,  1865;  South 
Carohna,  Nov.  13,  1865;  Alabama,  Dec.  2,  1865;  North  Carolina,  Dec.  4.  1865;  Georgia,  Dec 
9, 1865. 

The  following  States  not  enumerated  in  the  proclamation  of  the  Secretary  of  State  also 
ratified  this  amendment:  Oregon.  Dec.  U,  1865;  California,  Dec.  20,  1865;  Florida  Dec  28 
I860;  New  Jersey,  Jan.  23,  1866;   Iowa,  Jan.  24,  1866;   Texas,  Feb    18    1870 


AMENDMENTS   TO    THE    CONSTITUTION.  XXIX 


Article  XIV.^ 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life,  libertj^,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person  witliin  its  jurisdiction 
the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the  whole  number 
of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice 
President  of  the  United  States,  Representatives  in  Congress,  the  Executive 
and  Judicial  officers  of  a  State,  or  the  members  of  the  Legislature  thereof, 
is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebeUion,  or  other  crime,  the  basis  of  represen- 
tation therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress, 
or  elector  of  President  and  Vice  President,  or  hold  any  office,  civil  or  mili- 
tary, under  the  United  States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  legislature,  or  as  an  executive  or  judi- 
cial officer  of  any  State,  to  support  the  Constitution  of  the  United  States, 

1  The  Fourteenth  Amendment  was  proposed  to  the  legislatures  of  the  several  States  by 
Congress,  June  16,  1866.  On  July  21,  1868,  Congress  adopted  and  transmitted  to  the  De- 
partment of  State  a  concurrent  resolution  declaring  that  "  tiie  legislatures  of  the  States  of 
Connecticut,  Tennessee,  New  Jersey,  Oregon,  Vermont,  New  York,  Oliio,  Illinois,  West  Virginia, 
Kansas,  Maine,  Nevada,  ISIissouri,  Indiana,  ^Minnesota,  Now  Hampshire,  Massachusetts, 
Nebraska,  Iowa,  Arkansas,  Florida,  North  Carolina,  Alabama,  South  Carolina,  and  Louisiana, 
being  three-fourths  and  more  of  the  several  States  of  the  Union,  have  ratified  the  fourteenth 
article  of  amendment  to  the  Constitution  of  the  United  States,  duly  proposed  by  two-thirda 
of  each  House  of  the  Thirty-ninth  Congress:  Therefore  Resolved,  That  said  fourteenth  article 
is  hereby  declared  to  be  a  part  of  the  Constitution  of  the  United  States,  and  it  sliall  be  duly 
promulgated  as  such  by  the  Secretary  of  State."  The  Secretary  of  State  accordingly  issued  a 
proclamation,  dated  July  28, 1868,  declaring  that  the  proposed  fourteenth  amendment  had  been 
ratified,  in  tlie  manner  hereafter  mentioned,  by  the  legislatures  of  thirty  of  the  thirty-six  States, 
viz:  Connecticut,  June  30,  1866;  New  Hampshire,  July  7,  1866;  Tennessee,  July  19,  1866; 
New  Jersey,  Sept.  11,  1866  (and  the  legislature  of  the  same  State  passed  a  resolution  in  April, 

1868,  to  withdraw  its  consent  to  it) ;  Oregon,  Sept.  19,  1866;  Vermont,  Nov.  9,  1866;  Georgia 
rejected  it  Nov.  13,  1866,  and  ratified  it  July  21,  1868;  North  Carolina  rejected  it  Dec.  4,  1866, 
and  ratified  it  July  4, 1868;  South  Carolina  rejected  it  Dec.  20, 1866,  and  ratified  it  July  9,  1868; 
New  York  ratified  it  Jan.  10,  1867;  Ohio  ratified  it  Jan.  11,  1867  (and  the  legislature  of  the 
same  State  passed  a  resolution  in  Jan.  1S68,  to  withdraw  its  consent  to  it);  Illinois  ratified  it 
Jan.  15,  1867;  West  Virginia,  Jan.  16,  1867;  Kansas,  Jan.  18,  1867;  Maine,  Jan.  19,  1867; 
Nevada,  Jan.  22,  1867;  Missouri,  Jan.  26,  1867;  Indiana,  Jan.  20,  1867;  Minnesota,  Feb.  1, 
1867;  Rhode  Island,  Feb.  7,  1867;  Wisconsin,  Feb.  13,  1867;  Pennsylvania,  Feb.  13,  1867; 
Michigan,  Feb.  15,  1867;  Massachusetts,  Mar.  20,  1S67;  Nebraska,  June  15,1867;  Iowa,  Apr. 
3,1868;  Arkansas,  Apr.  6,  1868;  Florida,  June  9,  1868;  Louisiana,  July  9,  1868;  and  Alabama, 
July  13,  1868.  Georgia  again  ratified  the  amendment  Feb.  2,  1870.  Texas  rejected  it  Nov.  1, 
1866,  and  ratified  it  Feb.  18,  1870.      Virginia  rejected  it  Jan.  19,  1867,  and  ratified  it  Oct.  8, 

1869.  Tlie  amendment  was  rejected  by  Kentucky,  Jan.  10,  1867;  by  Delaware,  Feb.  8,  1867; 
by  Maryland,  Mar.  23,  1867;  and  was  not  afterwards  ratified  by  eitlier  State. 


XXX  AMENDMENTS   TO    THE   CONSTITUTION. 

shall  have  engaged  in  insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof.  But  Congress  may  by  a  vote  of 
two-thirds  of  each  House,  remove  such  disabihty. 

Section  4.  The  vahdity  of  the  public  debt  of  the  United  States,  au- 
thorized by  law,  including  debts  incurred  for  payment  of  pensions  and 
bounties  for  ser\nces  in  suppressing  insurrection  or  rebelUon,  shall  not  be 
questioned.  But  neither  the  United  States  nor  any  State  shall  assume  or 
pay  any  debt  or  obhgation  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave;  but  all  such  debts,  obhgations  and  claims  shall  be  held  illegal  and 
void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 

ARTICLE  XV.i 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  State  on  account  of 
race,  color,  or  previous  condition  of  servitude.  — 

Section  2.  The  Congress  shall  have  power  to  enforce  tliis  article  by 
appropriate  legislation.  — 

ARTICLE  XVI.2 

The  Congress  shall  have  power  to  lay  and  collect  taxes  on  incomes,  from 
whatever  source  derived,  without  apportionment  among  the  several  States, 
and  without  regard  to  any  census  or  enumeration. 

1  The  Fifteenth  Amendment  was  proposed  to  the  legislatures  of  the  several  States  by  Con- 
gress Feb.  27,  1869,  and  was  declared,  in  a  proclamation  of  the  Secretary  of  State,  dated  Mar. 
30,  1870,  to  have  been  ratified  by  tlie  legislatures  of  twenty-nine  of  the  thirty-seven  States. 
The  dates  of  these  ratifications  (arranged  in  the  order  of  their  reception  at  the  Department  of 
State)  were:  North  Carolina,  Mar.  5,  1809;  West  Virginia,  Mar.  3,  1869;  Massachusetts, 
March  9-12, 1869;  Wisconsin,  March  9, 1869;  Maine,  Mar.  12, 1869;  Louisiana,  Mar.  5,  1869; 
Michigan,  Mar.  8,1869;  South  Carolina,  Mar.  16, 1869;  Pennsylvania,  Mar.  26,  1869;  Arkan- 
sas, Mar.  30, 1869;  Connecticut,  May  19,  1869;  Florida,  June  15,  1869;  Illinois,  Mar.  5,  1869; 
Indiana,  May  1.3-14,  1869;  Now  York,  Mar.  17-Apr.  14,  1869  (and  the  legislature  of  the  same 
State  passed  a  resolution  Jan.  5,  1870,  to  withdraw  its  consent  to  it) ;  New  Hampshire,  July  7, 
1869;  Nevada,  Mar.  1,  1869;  Vermont,  Oct.  21,  1869;  Virginia,  Oct.  8,  1869;  Missouri,  Jan. 
10,  1870;  Mississippi,  Jan.  15-17,  1870;  Ohio,  Jan.  27,  1870;  Iowa,  Feb.  3,  1870;  Kansas, 
Jan.  18-19, 1870;  Minnesota,  Feb.  19,  1870;  Rhode  Island,  Jan.  18,  1870;  Nebraska,  Feb.  17, 
1870;  Texas,  Feb.  18,  1870. 

Georgia  also  ratified  the  amendment  Feb.  2,  1870;  and  New  Jersey  ratified  it  Feb.  21, 
1871. 

California,  Delaware,  Kentucky,  Maryland,  Oregon,  and  Tennessee  rejected  this  amendment. 

2  The  Sixteenth  Amendment  was  proposed  to  the  legislatures  of  the  several  States  by  Con- 
gress July  12,  1909,  and  was  declared,  in  an  announcement  by  the  Secretary  of  State,  dated 
Feb.  25,  1913,  to  have  been  ratified  by  the  legislatures  of  the  following  thirty-eight  of  the  forty- 
eight  States:  Alabama,  Aug.  17,  1909;  Kentucky,  Feb.  8,  1910;  South  Carolina,  Feb.  23, 
1910;  Illinois,  Mar.  1, 1910;  Mississippi,  Mar.  11, 1910;  Oklahoma,  Mar.  14, 1910;  Maryland, 
Apr.8,1910;  Georgia,  Aug.  3, 1910;  Texas,Aug.  17,1910;  Ohio,  Jan.  19,  1911;  Idaho,  Jan.  20, 
1911;  Oregon,  Jan.  2.3,  1911;  Washington,  Jan.  26,  1911;  California,  Jan.  31, 1911 ;  Montana, 
Jan.  31,  1911;  Indiana,  Feb.  6,  1911;  Nevada,  Feb.  8,  1911;  Nebraska,  Feb.  11, 1911 ;  North 
Carolina,  Feb.  11,  1911;  Colorado,  Feb.  20,  1911;  North  Dakota,  Feb.  21,  1911;  Michigan, 
Feb.  2.3,  1911;  Iowa,  Feb.  27,  1911;  Kansas,  Mar.  6,  1911;  Missouri,  Mar.  16,  1911;  Maine, 
Mar.31,1911;  Tennessee,  Apr.  11, 1911;  Arkansas,  Apr.  22,  1911;  Wisconsin,  May  26,  1911; 
New  York,  July  12,  1911;   South  Dakota,  Feb.  3,  1912;  Arizona,  Apr.  9,  1912;  Minnesota, 


AMENDMENTS    TO    THE    CONSTITUTION.  XXXI 


[ARTICLE  XVII.]  1 

[1.]  The  Senate  of  the  United  States  shall  be  composed  of  two  Senators 
from  each  State,  elected  by  the  people  thereof,  for  six  years;  and  each 
Senator  shall  have  one  vote.  The  electors  in  each  State  shall  have  the 
ciuahfications  requisite  for  electors  of  the  most  numerous  branch  of  the 
State  legislatures. 

[2.]  When  vacancies  happen  in  the  representation  of  any  State  in  the 
Senate,  the  executive  authority  of  such  State  shall  issue  writs  of  election 
to  fill  such  vacancies:  Provided,  That  the  legislature  of  any  State  may 
empower  the  executive  thereof  to  make  temporary  appointment  until  the 
people  fill  the  vacancies  by  election  as  the  legislature  may  direct. 

[3.]  Tliis  amendment  shall  not  be  so  construed  as  to  affect  the  election 
or  term  of  axiy  Senator  chosen  before  it  becomes  vahd  as  part  of  the  Con- 
stitution. 

ARTICLE  [XVIII. ] 2 

Section  1.  After  one  year  from  the  ratification  of  this  article  the  manu- 
facture, sale,  or  transportation  of  intoxicating  liquors  within,  the  importation 
thereof  into,  or  the  exportation  thereof  from  the  United  States  and  all 
territory  subject  to  the  jurisdiction  thereof  for  beverage  pinposes  is  hereby 
prohibited. 

Sec.  2.  The  Congress  and  the  several  States  shall  have  concurrent 
power  to  enforce  this  article  by  appropriate  legislation. 

Sec.  3.  This  article  shall  be  inoperative  unless  it  shall  have  been  rati- 
fied as  an  amendment  to  the  Constitution  by  the  legislatures  of  the  several 
States,  as  provided  in  the  Constitution,  within  seven  years  from  the  date  of 
the  submission    hereof  to  the  States  by  the  Congress. 

June  12,  1912;  Louisiana,  July  1,  1912;  Delaware,  Feb.  3,  1913;  Wyoming,  Feb.  3,  1913;  New 
Jersey,  Feb.  5,  1913;  New  Mexico,  Feb.  5,  1913. 

Vermont,  Massachusetts,  New  Hampshire,  and  West  Virginia  ratified  the  amendment  after 
the  announcement  by  the  Secretary  of  State. 

Connecticut,  New  Hampshire,  Rhode  Island,  and  Utah  rejected  this  amendment. 

1  The  Seventeenth  Amendment  was  proposed  to  the  legislatures  of  the  several  States  by 
Congress  on  May  16,  1912,  and  was  declared,  in  an  aimouncement  by  the  Secretary  of  State, 
dated  iMay  31,  1913,  to  have  been  ratified  by  the  legislatures  of  the  following  thirty-six  of  the 
forty-eight  States:  Massachusetts,  May  22,  1912;  Arizona,  June  3,  1912;  Minnesota,  June  10, 
1912;  New  York,  Jan.  15,  1913;  Kansas,  Jan.  17,  1913;  Oregon,  Jan.  23,  1913;  North  Caro- 
lina, Jan.  25,  1913;  California,  Jan.  28,  1913;  Michigan,  Jan.  28,  1913;  Idaho,  Jan.  31, 
1913;  West  Virginia,  Feb.  4,  1913;  Nebraska,  Feb.  5,  1913;  Iowa,  Feb.  6,  1913;  Mon- 
tana, Feb.  7,  1913;  Texas,  Feb.  7,  1913;  Washington,  Feb.  7,  1913;  Wyoming,  Feb.  11, 
1913;  Colorado,  Feb.  13,  1913;  Illinois,  Feb.  13,  1913;  North  Dakota,  Feb.  18,  1913; 
Nevada,  Feb.  19,  1913;  Vermont,  Feb.  19,  1913;  Maine.  Feb.  20,  1913;  New  Hampshire, 
Feb.  21,  1913;  Oklahoma,  Feb.  24,  1913;  Ohio,  Feb.  2.5,  1913;  South  Dakota,  Feb.  27,  1913; 
Indiana,  Mar.  6,  1913;  Missouri,  Mar.  7,  1913;  New  Mexico,  Mar.  15,  1913;  New  Jersey, 
Mar.  18,  1913;  Tennessee,  Apr.  1,  1913;  Arkansas,  Apr.  14,  1913;  Connecticut,  Apr.  15, 
1913;  Pennsylvania,  Apr.  15,  1913;  Wisconsin,  May  9,  1913. 

2  The  Eighteenth  Amendment  was  proposed  to  the  legislatures  of  the  several  States  by  a 
resolution  of  Congress  which  was  deposited  in  the  Department  of  .State  on  Dec.  19,  1917.  In 
an  announcement  by  the  Acting  Secretary  of  State,  dated  Jan.  29,  1919,  it  was  declared  to 
have  been  ratified  by  the  legislatures  of  thirty-six  of  the  forty-eight  States. 


XXXll  AMENDMENTS    TO    THE    CONSTITUTION. 


ARTICLE  [XIX.]  1 

[1.]  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied 
or  abridged  by  the  United  States  or  by  any  State  on  account  of  sex. 

[2.]  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

1  The  Nineteenth  Amendment  was  proposed  to  the  legislatures  of  the  several  States  by  a 
resolution  of  Congress  which  was  deposited  in  the  Department  of  State  on  June  5,  1919.  It 
was  declared  in  an  announcement  by  the  Secretary  of  State,  dated  Aug.  26,  1920,  to  have  been 
ratified  by  the  legislatures  of  thirty-six  of  the  forty-eight  States. 


CASES   ON  CONSTITUTIONAL  LAW 


BOOK   I. 
INTRODUCTORY  TOPICS. 


CHAPTER  I. 


THE  DISTINCTION  BETWEEN  LEGISLATR^, 
EXECUTIVE,  AND  JUDICIAL  POWERS.^ 

THE  DUKE  OF  YORK'S  CLAIM  TO  THE  CROWN. 
House  of  Lords.     1460. 

[5  Rotuli  Parliamentorum,  375.] 

Memorand',  that  the  xvi  day  of  Octobr',  the  ixth  daye  of  this 
present  Parlement,  the  Counseill  of  the  right  high  and  mighty 
Prynce  Richard  Due  of  York,  brought  into  the  Parlement  Chambre 
a  writyng,  conteignyng  the  clayme  and  title  of  the  right,  that  the 
seid  Due  pretended  unto  the  Corones  of  Englond  and  of  Fraunce, 
and  Lordship  of  Irelond,  and  the  same  writyng  delyvered  to  the 
Right  Reverent  Fader  in  God  George  Bishop  of  Excestre,  Chaun- 
celler  of  Englond,  desirjoig  hym  that  the  same  WTityng  myght  be 
opened  to  the  Lordes  Spirituelx  and  Temporelx  assembled  in  this 
present  Parlement,  and  that  the  seid  Due  myght  have  brief  and 
expedient  answere  thereof  :  wheruppon  the  seid  Chaunceller 
opened  and  shewed  the  seid  desire  to  the  Lordes  Spirituelx  and 
Temporelx,  askyng  the  question  of  theym,  whither  they  wold  the 
seid  writyng  shuld  be  openly  radde  before  thejui  or  noo.  To 
the  which  question  it  was  answered  and  agreed  by  all  the  seid 
Lordes:  In  asmuche  as  every  persone  high  and  lowe,  suyng  to  this 
high  Court  of  Parlement,  of  right  must  be  herd,  and  his  desire 

^  The  Constitution  of  the  United  States  contains  many  passages  more  or 
less  pertinent  to  this  topic.  See  I.  1;  I.  3,  claase  6;  I.  5,  clauses  1  and  2;  I.  7, 
clauses  2  and  3;  I.  8,  clauses  9  and  11-16  and  18;  I.  9,  clause  2;  II.  1,  clause 
1;  II.  2;  II.  3;  II.  4;  III.  1;  III.  2,  clauses  1  and  2;  IV.  4;  VI.  clauses  2  and 
3;  Am.  XI. —Ed. 

1 


2  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

and  Petition  understande,  that  the  said  writyng  shuld  be  radde 
and  herd,  not  to  be  answered  without  the  K^Tigs  commaundement, 
for  so  moche  as  the  mater  is  so  high,  and  of  soo  grete  \vjghi  and 
poyse.     Which  writjaig  there  than  was  radde.  .  .  . 

And  afterward,  the  xvii  day  of  October,  the  xth  day  of  this 
present  Parlement,  the  seid  Chaunceller  shewed  and  declared  to 
the  seid  Lordes  Spirituelx  and  Temporelx  beyng  in  the  same 
Parlement,  howe  that  the  Counseill  of  the  seid  Due  of  York, 
gretely  desired  to  have  answere  of  such  writyng,  .  .  .  and  ther- 
uppon  asked  the  seid  Lordes,  what  they  thought  was  to  be  doon 
in  that  matier.     To  the  which  question  it  was  answered  and 
thought  by  all  the  seid  Lordes,  that  the  matier  was  so  high  and  of 
such  wyght,  that  it  was  not  to  eny  of  the  Kynges  Subgetts  to 
enter  into  communication  therof,  withoute  his  high  commaunde- 
ment, agreement  and  assent  had  therto.     And  ferthermore,  for 
asmoch  as  the  seid  Due  desired  and  required  bref  and  undelared 
answere  of  the  seid  writyng,  and  in  eschuyng  and  avoidyng  of 
grete  and  manyfold  inconveniences  that  weren  lykly  to  ensue,  yf 
hasty  provision  of  good  answere  in  that  behalf  were  not  had,  it 
was  thought  and  agreed  by  all  the  Lordes,  that  they  all  shuld  goo 
unto  the  Kyng,  to  declare  and  open  the  seid  mater  unto  his  High- 
nes,  and  to  understond  what  his  good  grace  wuld  to  be  doon 
ferther  therin.     And  theruppon  incontjment  all  the  seid  Lordes 
Spirituelx  and  Temporelx  went  to  the  Kyngs  high  presence,  and 
therunto  opened  and  declared  the  seid  mater,  by  the  mouth  of 
his  said  Chaunceller  of  Englond.     And  the  same  matier  by  the 
Kynges  Highnes  herd  and  conceyved;    It  pleased  hym  to  pray 
and  commaunde  all  the  seid  Lordes,  that  they  shuld  serche  for 
to  fynde  in  asmuch  as  in  them  was,  all  such  thyngs  as  myght  be 
objecte  and  leyde  ayenst  the  cleyme  and  title  of  the  seid  Due. 
And  the  seid  Lordes  besaught  the  Kyng,  that  he  wuld  remember 
hym,  yf  he  myght  fynde  any  resonable  mater  that  myght  be 
objected  ayenst  the  seid  cleyme  and  title,  in  so  moche  as  his  seid 
Highnes  had  seen  and  understouden  many  dyvers  writyngs  and 
Cronicles.     Wheruppon,  on  the  morn  the  xviii  day  of  October, 
.    .    .    the  forseid  Lordes  sent  for  the  Kyngs  Justices  into  the 
Parlement  Chambre,  to  have  their  avis  and  Counsell  in  this 
behalf,  and  there  delyvered  to  thejTtn  the  writyng  of  the  cleyme 
of  the  seid  Due,  and  in  the  Kyngs  name  gave  theym  straitely  in 
commaundement,  sadly  to  take  avisament  therin,  and  to  serche 
and  fynde  all  such  objections  as  myght  be  leyde  ayenst  the  same, 
in  fortefying  of  the  Kynges  right. 


CLARK  S    CASE.  3 

"Wherunto  the  same  Justices,  the  jMonday,  the  xx  day  of  Octobr' 
then  next  ensuyng,  for  their  answere  uppon  the  seid  writyng  to 
theym  delyvered  seiden,  that  they  were  the  Kyngs  Justices,  and 
have  to  determ^Tie  such  maters  as  com  before  theym  in  the  lawe, 
betwene  partie  and  partie,  and  in  such  maters  as  been  betwene 
partie  and  partie  they  may  not  be  of  Counseill;  and  sith  this 
mater  was  betwene  the  K}iig  and  the  seid  Due  of  York  as  two 
parties,  and  also  it  hath  not  be  accustumed  to  calle  the  Justices 
to  Counseill  in  such  maters,  and  in  especiall  the  mater  was  so 
high,  and  touched  the  KjTigs  high  estate  and  regalie,  which  is 
above  the  lawe  and  passed  ther  lem\Tig,  wherfore  they  durst 
not  enter  into  eny  communication  therof,  for  it  perteyned  to  the 
Lordes  of  the  KjTigs  blode,  and  th'  apparage  of  this  his  lond,  to 
have  communication  and  medle  in  such  maters;  and  therfore 
they  humble  bysought  all  the  Lordes,  to  have  theym  utterly 
excused  of  eny  a\'yce  or  Counseill,  by  thejTn  to  be  yeven  in  that 
matier.  .  .  . 


CLARK'S  CASE. 

Common  Pleas.     1596. 

[5  Coke's  Reports,  64a.]  ^ 

In  an  action  of  false  imprisonment  brought  by  Clark  against 
Gape;  the  defendant  justified  the  imprisonment,  because  King 
E.  6.  incorporated  the  town  of  St.  Albans  by  the  name  of  Mayor, 
etc.,  and  granted  to  them  to  make  ordinances;  and  shewed,  that 
the  Queen  appointed  the  term  to  be  kept  there,  and  that  they 
with  the  assent  of  the  plaintiff  and  other  burgesses,  did  assess  a 
sum  on  every  inhabitant  for  the  charges  in  erecting  the  courts 
there;  and  ordained,  that  if  any  should  refuse  to  pay,  etc.,  that 
he  should  be  imprisoned,  etc.,  and  because  the  plaintiff  being  a 
burgess,  etc.,  refused  to  pay,  etc.,  he  as  Mayor  justified;  and  it 
was  adjudged  no  plea,  for  this  ordinance  is  against  the  statute  of 
Magna  Charta,  cap.  29.  Nullus  liber  homo  imprisonetur ;  which 
act  hath  been  confirmed  and  established  above  thirty  times,  and 
the  plaintiff's  assent  cannot  alter  the  law  in  such  case;  but  it  was 
resolved,  that  they  might  have  inflicted  a  reasonable  penalty,  but 
not  imprisonment,  which  penalty  they  might  limit  to  be  levied  by 
distress,  or  for  which  an  action  of  debt  lay;  and  the  plaintiff  had 
judgment. 

^  B.C.  sub  nom.     Bab  v.  Clarke,  Moore,  411.  —  Ed. 


4  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

PROHIBITIONS  DEL   ROY. 

Before  all  the  Judges.     1607. 

[12  Coke's  Reports,  63.] 

Note,  upon  Sunday  the  10th  of  November  in  this  same  term, 
the  King,  upon  complaint  made  to  him  by  Bancroft,  Archbishop 
of  Canterbury,  concerning  prohibitions,  the  King  was  informed, 
that  when  the  question  was  made  of  what  matters  the  ecclesiastical 
Judges  have  cognizance,  either  upon  the  exposition  of  the  statutes 
concerning  tithes,  or  any  other  thing  ecclesiastical,  or  upon  the 
statute  1  El.  concerning  the  high  commission,  or  in  any  other 
case  in  which  there  is  not  express  authority  in  law,  the  King 
himself  may  decide  it  in  his  royal  person;    and  that  the  Judges 
are  but  the  delegates  of  the  King,  and  that  the  King  may  take 
what  causes  he  shall  please  to  determine,  from  the  determination 
of  the  Judges,  and  may  determine  them  himself.     And  the  Arch- 
bishop said,  that  this  was  clear  in  divinity,  that  such  authority 
belongs  to  the  King  by  the  word  of  God  in  the  Scripture.    To 
which  it  was  answered  by  me,  in  the  presence,  and  with  the  clear 
consent  of  all  the  Judges  of  England,  and  Barons  of  the  Exchequer, 
that  the  King  in  his  own  person  cannot  adjudge  any  case,  either 
criminal,  as  treason,  felony,  &c.  or  betwixt  party  and  party,  con- 
cerning his  inheritance,  chattels,  or  goods,  &c.  but  this  ought  to 
be  determined  and  adjudged  in  some  court  of  justice,  according 
to  the  law  and  custom  of  England;    and  always  judgments  are 
given,  ideo  consideratum  est  -per  curiam,  so  that  the  Court  gives 
the  judgment:    and  the  King  hath  his  Court,  viz.  in  the  upper 
house  of  Parliament,  in  which  he  with  his  Lords  is  the  supreme 
Judge  over  all  other  Judges;  for  if  error  be  in  the  Common  Pleas, 
that  may  be  reversed  in  the  King's  Bench:   and  if  the  Court  of 
King's  Bench  err,  that  may  be  reversed  in  the  upper  house  of 
Parliament,  by  the  King,  with  the  assent  of  the  Lords  spiritual 
and  temporal,  without  the  Commons:    and  in  this  respect  the 
King  is  called  the  Chief  Justice,  20  H.  7.  7  a.  by  Brudnell:   and 
it  appears  in  our  books,  that  the  King  may  sit  in  the  Star-chamber; 
but  this  was  to  consult  with  the  Justices,  upon  certain  questions 
proposed  to  them,  and  not  in  judicio:  so  in  the  King's  Bench  he 
may  sit,  but  the  Court  gives  the  judgment:   and  it  is  commonly 
said  in  our  books,  that  the  King  is  always  present  in  Court  in  the 
judgment  of  law;   and  upon  this  he  cannot  be  nonsuit:   but  the 
judgments  are  always  given  per  curiam;  and  the  Judges  are  sworn 


PROCLAMATIONS.  5 

to  execute  justice  according  to  law  and  the  custom  of  England. 
And  it  appears  by  the  act  of  Parliament  of  2  Ed.  3.  cap.  9.  2  Ed. 
3.  cap.  1.  That  neither  by  the  great  seal,  nor  by  the  little  seal, 
justice  shall  be  delayed;  ergo,  the  King,  cannot  take  any  cause 
out  of  any  of  his  Courts,  and  give  judgment  upon  it  himself,  but 
in  his  own  cause  he  may  stay  it,  as  it  doth  appear  11  H.  4.  8.  .  .  . 
Then  the  King  said,  that  he  thought  the  law  was  founded  upon 
reason,  and  that  he  and  others  had  reason,  as  well  as  the  Judges: 
to  which  it  was  answered  by  me,  that  true  it  was,  that  God  had 
endowed  his  Majesty  with  excellent  science,  and  great  endow- 
ments of  nature;  but  His  Majesty  was  not  learned  in  the  laws  of 
his  realm  of  England,  and  causes  which  concern  the  life,  or  inheri- 
tance, or  goods,  or  fortunes  of  his  subjects,  are  not  to  be  decided 
by  natural  reason  but  by  the  artificial  reason  and  judgment  of 
law,  which  law  is  an  act  which  requires  long  study  and  experience, 
before  that  a  man  can  attain  to  the  cognizance  of  it:  and  that  the 
law  was  the  golden  met- wand  and  measure  to  try  the  causes  of  the 
subjects;  and  which  protected  his  Majesty  in  safety  and  peace: 
with  which  the  King  was  greatly  offended,  and  said,  that  then 
he  should  be  under  the  law,  which  was  treason  to  affirm,  as  he 
said;  to  which  I  said,  that  Bracton  saith,  quod  Rex  non  debet  esse 
sub  homine,  sed  sub  Deo  et  lege. 


PROCLAMATIONS. 
Privy  Council.     1610. 

[12  Coke's  Reports,  74.]  ^ 


Memorandum,  that  upon  Thursday,  20  Sept.  8  Regis  Jacobi, 
I  was  sent  for  to  attend  the  Lord  Chancellor,  Lord  Treasurer, 
Lord  Privy  Seal,  and  the  Chancellor  of  the  Duchy;  there  being 
present  the  Attorney,  the  Solicitor,  and  Recorder:  and  two 
questions  were  moved  to  me  by  the  Lord  Treasurer;  the  one  if 
the  King  by  his  proclamation  may  prohibit  new  buildings  in  and 
about  London,  &c.;    the  other,  if  the  King  may  prohibit  the 

1  s.c.  2  Howell's  State  Trials,  723.  —  Ed. 


b  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

making  of  starch  of  wheat;  and  the  Lord  Treasurer  said,  that 
these  were  preferred  to  the  King  as  grievances,  and  against  the 
law  and  justice:  and  the  King  hath  answered,  that  he  will  confer 
with  his  Privy  Council,  and  his  Judges,  and  then  he  will  do  right 
to  them.  To  which  I  answered,  that  these  questions  were  of  great 
importance.  2.  That  they  concerned  the  answer  of  the  King 
to  the  body,  viz.  to  the  Commons  of  the  house  of  Parhament. 
3.  That  I  did  not  hear  of  these  questions  until  this  morning  at 
nine  of  the  clock :  for  the  grievances  were  preferred,  and  the  answer 
made  when  I  was  in  my  circuit.  And,  lastly,  both  the  procla- 
mations, which  now  were  shewed,  were  promulgated,  anno  5  Jew. 
after  my  tune  of  attorneyship:  and  for  these  reasons  I  did  humbly 
desire  them  that  I  might  have  conference  with  my  brethren  the 
Judges  about  the  answer  of  the  King,  and  then  to  make  an  advised 
answer  according  to  law  and  reason.  To  which  the  Lord  Chancellor 
said,  that  every  precedent  had  first  a  commencement,  and  that 
he  would  advise  the  Judges  to  maintain  the  power  and  prerogative 
of  the  King;  and  in  cases  in  which  there  is  no  authority  and 
precedent,  to  leave  it  to  the  King  to  order  in  it,  according  to  his 
wisdom,  and  for  the  good  of  his  subjects,  or  otherwise  the  King 
would  be  no  more  than  the  Duke  of  Venice:  and  that  the  King 
was  so  much  restrained  in  his  prerogative,  that  it  was  to  be  feared 
the  bonds  would  be  broken:  and  the  Lord  Privy  Seal  said,  that 
the  physician  was  not  always  bound  to  a  precedent,  but  to  apply 
his  medicine  according  to  the  quality  of  the  disease:  and  all 
concluded  that  it  should  be  necessary  at  that  time  to  confirm  the 
King's  prerogative  with  our  opinions,  although  that  there  were 
not  any  former  precedent  or  authority  in  law :  for  every  precedent 
ought  to  have  a  commencement. 

To  which  I  answered,  that  true  it  is  that  every  precedent 
hath  a  commencement;  but  when  authority  and  precedent  is 
wanting,  there  is  need  of  great  consideration,  before  that  any 
thing  of  novelty  shall  be  established,  and  to  provide  that  this 
be  not  against  the  law  of  the  land:  for  I  said,  that  the  King 
cannot  change  any  part  of  the  common  law,  nor  create  any  offence 
by  his  proclamation,  which  was  not  an  offence  before,  without 
Parliament.  But  at  this  time  I  only  desired  to  have  a  time  of 
consideration  and  conference  with  my  brothers,  for  deliberandum 
est  diu,  quod  statuendum  est  semel;  to  which  the  Solicitor  said, 
that  divers  sentences  were  given  in  the  Star-chamber  upon  the 
proclamation  against  building;  and  that  I  myself  had  given 
sentence  in  divers  cases  for  the  said  proclamation:    to  which  I 


WINTHROP   V.    LECHMERE.  / 

answered,  that  precedents  were  to  be  seen,  and  consideration  to 
be  had  of  this  upon  conference  with  my  brethren,  for  that  melius 
est  recurrere,  quam  male  currere;  and  that  indictments  conclude, 
contra  leges  et  statuta;  but  I  never  heard  an  indictment  to  conclude, 
contra  regiam  proclamationem.  At  last  my  motion  was  allowed; 
and  the  Lords  appointed  the  two  Chief  Justices,  Chief  Baron, 
and  Baron  Altham,  to  have  consideration  of  it.  .  .  . 

In  the  same  term  it  was  resolved  by  the  two  Chief  Justices, 
Chief  Baron,  and  Baron  Altham,  upon  conference  betwixt  the 
Lords  of  the  Privy  Council  and  them,  that  the  King  by  his  proc- 
lamation cannot  create  any  offence  which  was  not  an  offence 
before,  for  then  he  may  alter  the  law  of  the  land  by  his  proclama- 
tion in  a  high  point;  for  if  he  may  create  an  offence  where  none 
is,  upon  that  ensues  fine  and  imprisonment:  also  the  law  of  Eng- 
land is  divided  into  three  parts,  common  law,  statute  law,  and 
custom;  but  the  King's  proclamation  is  none  of  them.  .  .  . 

Lastly,  if  the  offence  be  not  punishable  in  the  Star-chamber, 
the  prohibition  of  it  by  proclamation  cannot  make  it  punishable 
there.  .  .  . 


WINTHROP,  Appellant,  v.  LECHMERE,  Appellee. 

Privy  Council.     1728. 

[5  Massachusetts  Historical  Society  Collections,  Sixth  Series,  440.]  * 

Appeal  from  the  Superior  Court  of  the  Colony  of  Connecticut. 

Wait  Still  Winthrop  died  intestate  in  1717,  owning  personalty 
and  realty  in  Connecticut.  The  Court  of  Probates  for  the  County 
of  New  London  appointed  John  Winthrop  administrator.  The 
administrator  was  the  intestate's  only  son;  and  there  was  one 
daughter,  Ann,  wife  of  Thomas  Lechmere.  The  administrator's 
inventory,  disregarding  the  Connecticut  Act  of  1699  ^  for  the  Settle- 

1  A  short  statement  has  been  framed  upon  the  papers  printed  by  the  Massa- 
chusetts Historical  Society.  Additional  matter  may  be  found  in  5  Mass.  Hist. 
Soc.  Coll.,  Sixth  Series,  436-511;  7  Conn.  Colonial  Records,  20,  37,  43,  122, 
125,  136,  185,  217,  238,  571;  4  Conn.  Hist.  Soc.  Coll.,  94,  n.,  234,  392;  5  id. 
71,  and  passim,  11  id.  24,  and  passim;  Mass.  Hist.  Soc.  Proc,  1873-1875,  100. 
See  Thayer's  Cases  on  Constitutional  Law,  34.  —  Ed. 

2  The  act  may  be  found  in  4  Conn.  Colonial  Records,  307,  or  in  Acts  and 
Resolves  of  Connecticut,  edition  of  1702  (reprinted  in  facsimile  in  1901),  59, 
or  in  Acts  and  Laws  of  Connecticut,  edition  of  1715,  61.  —  Ed. 


8  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

ment  of  Intestates'  Estates,  omitted  realty.  Hence  the  Court  of 
Probates  rejected  the  inventory.  Thereupon  the  administrator 
appealed  to  the  Superior  Court.  Pending  that  appeal,  Lechmere 
in  behalf  of  his  wife  moved  the  Court  of  Probates  for  new  letters 
of  administration.  The  Court  of  Probates  denied  that  motion. 
Thereupon  Lechmere  appealed  to  the  Superior  Court.  The  Supe- 
rior Court  ultimately  decided  the  two  appeals  at  the  same  time, 
and  decided  both  of  them  against  Winthrop.  Thereupon  Win- 
throp  unsuccessfully  memorialized  the  General  Assembly.  He 
then  petitioned  the  King  in  Council  to  admit  an  appeal.  This 
petition  was  granted,  and  the  appeal  was  referred  to  the  Committee 
for  Hearing  Appeals  from  the  Plantations.^ 

Yorke  (Attorney  General)  and  Talbot  (Solicitor  General),  for 
the  appellant.  ...  As  to  this  Act  we  .  .  .  insist  (first)  that  it 
is  an  obsolete  act;  .  .  .  (secondly)  that  the  same  is  void  in  it  self 
as  being  not  warranted  by  the  Charter,^  and  can  no  ways  influence 

1  Winthrop  wrote:  "  There  were  present  at  the  hearing  of  my  case:  the 
Lord  President  of  the  Councell,  the  Duke  of  Devonshire,  my  lord  Trevor, 
Lord  Privy  Seal,  the  two  Lord  Chief  Justices,  the  Lord  Chancelor,  Sir  Robert 
Walpole,  Lord  Treasurer,  the  Master  of  the  Rolls,  my  Lord  Hay,  my  Lord 
Finlater,  Chancelor  of  Scotland,  Archbishop  of  York,  Archbishop  of  Canter- 
bury, my  Lord  Bishop  of  London,  and  a  full  Councell  Board;  and  a  very 
numerous  auditory  of  knights  and  gentlemen."  Letter  of  John  Winthrop 
to  his  wife,  5  Mass.  Hist.  Soc.  Coll.,  Sixth  Series,  510.  —  Ed. 

2  The  Connecticut  Charter  of  1862  began  thus:  "  Charles  the  Second,  by 
the  Grace  of  God,  King  of  England,  Scotland,  France,  and  Ireland,  Defender 
of  the  Faith,  etc.,  Greeting.  Whereas  by  the  several  Navigations,  Discov- 
eries, and  Successful  Plantations  of  divers  of  Our  Loving  Subjects  of  this 
Our  Realm  of  England,  several  Lands,  Lslands,  Places,  Colonies,  and  Planta- 
tions have  been  Obtained,  and  Setled  in  that  part  of  the  Continent  of  America, 
called  New-England;  and  thereby  the  Trade,  and  Commerce  there,  hath  been 
of  late  Years  much  Increased."  It  then  said  that  the  King  had  been  informed 
by  the  petition  of  nineteen  men  therein  named,  "  being  Persons  principally 
Interested  in  Our  Colony,  or  Plantation  of  Connecticut  .  .  .  that  the  same 
Colony,  or  the  greatest  part  thereof  was  Purchased,  .  .  .  and  some  other  part 
thereof  gained  by  Conquest,  and  with  much  Difficulty,  and  at  the  only  En- 
deavours, Expence,  and  Charges  of  them,  and  theu-  Associates,  and  those 
under  whdm  they  Claim,  Subdued,  and  Improved,  and  thereby  become  a  Con- 
siderable Inlargement,  and  Addition  of  Our  Dominions."  It  continued:  "  In 
Consideration  thereof,  and  in  Regard  the  said  Colony  is  Remote  from  other 
the  English  Plantations  .  .  .  and  to  the  End  the  Affairs,  and  Business  which 
shall  from  time  to  time  happen,  or  arise  concerning  the  same,  may  be  duly 
Ordered,  and  Managed,  We  have  thought  Fit,  and  at  the  Humble  Petition  of 
the  Persons  aforesaid,  and  are  Graciously  Pleased  to  Create,  and  Make  them 
a  Body  Politick,  and  Corporate,  with  the  Powers,  and  Privileges  herein  after 
mentioned."    It  thereupon  provided  that  those  persons  "  and  all  such  others  as 


WINTHROP   V.    LECHMERE.  9 

the  present  case.     For  by  the  Charter  their  power  of  making  laws  is 
restrained  and  limitted  in  a  very  special  manner,  (viz.)  such  laws 

now^are,  or  hereafter  shall  be  Admitted,  and  made  Free  of  the  Company,  and 
Society  of  Our  Colony  of  Connecticut  in  America,  shall  from  Time  to  Time, 
and  for  Ever  hereafter,  be  One  Body  Corporate,  and  Politick  in  Fact,  and 
Name,  by  the  Name  of,  Governom*,  and  Company  of  the  English  Colony  of 
Connecticut  in  New-England  in  America;  and  that  by  the  same  Name  they, 
and  their  Successors  shall,  and  may  have  Perpetual  Succession,  and  shall,  and 
may  be  Persons  Able,  and  Capable  in  the  Law,  to  Plead,  and  be  Impleaded, 
to  Answer,  and  to  be  Answered  unto,  to  Defend,  and  be  Defended  in  ^AJl,  and 
Singular  Suits,  Causes,  Quarrels,  ^Matters,  Actions,  and  Things  of  what  Kind, 
or  Nature  soever;  and  also  to  Have,  Take,  Possess,  Acquire,  and  Purchase 
Lands,  Tenements,  or  Hereditaments,  or  any  Goods,  or  Chattels,  and  the 
same  to  Lease,  Grant,  Demise,  Alien,  Bargain,  Sell,  and  Dispose  of,  as  other 
Our  Liege  People  of  this  Our  Realm  of  England,  or  any  other  Corporation,  or 
Body  Politick  within  the  same  may  Lawi'ully  do.  And  further.  That  the  said 
Governour,  and  Company,  and  their  Successors,  shall,  and  may  for  ever  here- 
after have  a  Common  Seal,  to  Serve,  and  Use  for  all  Causes,  Matters,  Things 
and  Affairs  whatsoever,  of  them,  and  their  Successors."  It  said  also:  "  For 
the  better  Ordering,  and  Managing  of  the  Affairs,  and  Business  of  the  said 
Company,  and  their  Successors,  there  shall  be  One  Governour,  One  Deputy- 
Governour,  and  Twelve  Assistants,  to  be  from  time  to  time  Constituted, 
Elected,  and  Chosen  out  of  the  Freemen  of  the  Said  Company  .  .  .  which 
said  Officers  shall  apply  themselves  to  take  care  for  the  best  Disposing,  and 
Ordering  of  the  general  Business,  and  Affairs  of,  and  concerning  the  Land, 
and  Hereditaments  herein  after  mentioned  to  be  Granted,  and  the  Plantation 
thereof,  and  the  Government  of  the  People  thereof.  .  .  .  And  further,  We 
Will,  and  by  these  Presents  for  Us,  Our  Heirs,  and  Successors,  Do  Ordain,  and 
Grant,  that  the  Governour  of  the  said  Company  for  the  Time  being,  or  in  his 
Absence  by  occasion  of  Sickness,  or  otherwise  by  his  leave,  or  permission,  the 
Deputy-Go vemour,  .  .  .  shall,  and  may  from  time  to  time  upon  all  Occa- 
sions, give  Order  for  the  Assembling  of  the  said  Company,  and  Calling  them 
together  to  Consult,  and  Advise  of  the  Business,  and  Affairs  of  the  said  Com- 
pany, and  that  for  ever  hereafter,  twice  in  every  Year,  ...  or  oftner  in  case 
it  shall  be  requisite;  the  Assistants,  and  Freemen  of  the  said  Compam',  or  such 
of  them  (not  exceeding  Two  Persons  from  each  Place,  Town,  or  City)  who 
shall  be  from  time  to  time  thereunto  Elected,  or  Deputed,  by  the  Major  part 
of  the  Freemen  of  the  Respective  To^tis,  Cities,  and  Places,  for  which  they 
shall  be  so  Elected,  or  Deputed,  shall  have  a  General  Meeting,  or  Assembly, 
then,  and  there  to  Consult,  and  Advise  in,  and  about  the  Affairs,  and  Business 
of  the  said  Company;  and  that  the  Governom-,  or  in  his  Absence  the  Deputy- 
Govemoiu-,  .  .  .  and  such  of  the  Assistants,  and  Freemen  of  the  said  Com- 
pany as  shall  be  so  Elected,  or  Deputed,  and  be  present  at  such  Meeting,  or 
Assembly,  or  the  greatest  Nmnber  of  them  whereof  the  Governour,  or  Deputy 
Governour,  and  Six  of  the  Assistants  at  least,  to  be  Seven,  shall  be  called  the 
General  Assembly,  and  shall  have  full  Power,  and  Authority  to  Alter,  and 
Change  their  Days,  and  Times  of  Meeting,  or  General  Assemblies,  for  Electing 
the  Governoxir,  Deputy  Governour,  and  Assistants,  or  other  Officers,  .  .  . 
and  to  Choose,  Nominate,  and  Appoint  such,  and  so  many  other  Persons  as 
they  shall  think  fit,  and  shall  be  Wilhng  to  Accept  the  same,  to  be  Free  of  the 


10  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 

must  be  wholesome  and  reasonable  and  [not]  contrary  to  the  laws 
of  this  realm  of  England,  and  then  b}^  the  Charter  the  inhabitants 

said  Company,  and  Body  Politick,  and  them  into  the  same  to  Admit :  And  to 
Elect,  and  Constitute  such  Officers  as  they  shall  Think  Fit,  and  Requisite  for 
the  Ordering,  Managing,  and  Disposing  of  the  Affairs  of  the  said  Governour, 
and  Company,  and  their  Successors.  .  .  .  And  further,  .  .  .  We  do  for  Us, 
Our  Heirs,  and  Successors,  Ordain,  Declare,  and  Grant  unto  the  said  Gover- 
nour, and  Company,  and  their  Successors,  That  all,  and  every  the  Subjects 
of  Us,  Our  Heirs,  or  Successors,  which  shall  go  to  Inhabit  within  the  said 
Colony,  and  every  of  their  Children  which  shall  Happen  to  be  Born  there,  or 
on  the  Sea  in  going  thither,  or  Returning  from  thence,  shall  have  and  enjoy  all 
Liberties,  and  Immunities  of  Free,  and  Natural  Subjects  within  any  the 
Dominions  of  Us,  Our  Heirs,  or  Successors,  to  all  Intents,  Constructions,  and 
Pui-poses  whatsoever,  as  if  they,  and  every  of  them  were  Born  within  the 
Realm  of  England.  .  .  .  And  We  do  further  of  Om-  especial  Grace,  certain 
Knowledge,  and  meer  Motion,  Give,  and  Grant  unto  the  said  Governour,  and 
Company  of  the  English  Colony  of  Connecticut  in  New  England  in  America, 
and  theii'  Successors,  That  it  shall  and  may  be  Lawful  to,  and  for  the  Gover- 
nour, or  Deputy-Governour,  and  such  of  the  Assistants  of  the  said  Company 
for  the  Time  being,  as  shall  be  Assembled  in  any  of  the  General  Courts  afore- 
said, or  in  any  Courts  to  be  especially  Summoned,  or  Assembled  for  that 
Pm'pose,  or  the  gi-eater  part  of  them,  whereof  the  Governour,  or  Deputy- 
Governour,  and  Six  of  the  Assistants  to  be  always  Seven,  to  Erect,  and  Make 
such  Judicatories,  for  the  Hearing,  and  Determining  of  all  Actions,  Causes, 
Matters,  and  Things  happening  within  the  said  Colony,  or  Plantation,  and 
which  shall  be  in  Dispute,  and  Depending  there,  as  they  shall  think  Fit,  and 
Convenient,  and  also  from  Time  to  Time  to  Make,  Ordain,  and  Establish  all 
Manner  of  Wholesome,  and  Reasonable  Laws,  Statutes,  Ordinances,  Direc- 
tions, and  Instructions,  not  Contrary  to  the  Laws  of  this  Realm,  of  England, 
as  well  for  Setling  the  Forms,  and  Ceremonies  of  Government,  and  Magis- 
trac}^,  Fit,  and  Necessary  for  the  said  Plantation,  and  the  Inhabitants  there, 
as  for  Naming  and  Stiling  all  Sorts  of  Officers,  both  Superiour,  and  Inferiour, 
which  they  shall  Find  Needful  for  the  Government,  and  Plantation  of  the  said 
Colony,  and  the  Distinguishing,  and  setting  forth  of  the  several  Duties, 
Powers,  and  Limits  of  every  such  Office,  and  Place,  and  the  Forms  of  such 
Oaths,  not  being  contrary  to  the  Laws,  and  Statutes  of  this  Our  Realm  of 
England,  to  be  Administered  to  the  Execution  of  the  said  several  Offices,  and 
Places;  and  also  for  the  Disposing,  and  Ordering  of  the  Election  of  such  of  the 
saifl  Officers  as  are  to  be  Annually  Chosen,  and  of  such  others  as  shall  Succeed 
in  case  of  Death,  or  Removal,  and  Administering  the  said  Oath  to  the  New- 
Elected  Officers,  and  Granting  necessary  Commissions,  and  for  Imposition  of 
Lawful  Fines,  INIulcts,  Imprisonment,  or  other  Punishment  upon  Offenders, 
and  Delinquents  according  to  the  Coiu-se  of  other  Corporations  within  this 
Our  Kingdom  of  England,  and  the  same  Laws,  Fines,  Mulcts,  and  Executions, 
to  Alter,  Change,  Revoke,  Adnul,  Release,  or  Pardon  under  their  Common 
Seal,  .  .  .  Willing,  Commanding,  and  Requiring,  and  by  these  Presents  for 
Us,  Our  Heirs,  and  Successors,  Ordaining,  and  Appointing,  that  all  such  Laws, 
Statutes,  and  Ordinances,  Instructions,  Impositions  and  Directions  as  shall 
be  so  made  by  the  Governour,  Deputy  Governour,  anrl  Assistants  as  aforesaid, 
and  Pubhsh[ed]  in  Writing  under  their  Common  Seal,  shall  carefully,  and 


WINTHROP   V.    LECHMERE.  11 

may  have,  take,  possess,  &c.,  lands,  &c.,  and  the  same  dispose  of 
as  other  the  leige  people  of  the  realm  of  England,  and  were  to 

duly  be  Observed,  Kept,  Performed,  and  put  in  Execution,  according  to  the 
true  Intent,  and  Meaning  of  the  same,  and  those  Our  Letters  Patents,  or  the 
Duplicate,  or  Exemplification  thereof,  shall  be  to  all,  and  every  such  Officers, 
Superiors,  and  Inferiors  from  Time  to  Time,  for  the  putting  of  the  same  Orders, 
Laws,  Statutes,  Ordinances,  Instructions,  and  Directions  in  due  Execution, 
against  Us,  Our  Heirs,  and  Successors,  a  sufficient  Warrant  and  Discharge. 
And  We  do  further  for  Us,  Our  Heirs,  and  Successors,  Give  and  Grant  unto 
the  said  Governour,  and  Company,  and  their  Successors  by  these  Presents, 
That  it  shall,  and  may  be  lawful  to,  and  for  the  Chief  Commanders,  Gover- 
nours,  and  Officers  of  the  said  Company  for  the  Time  being,  .  .  .  for  their 
Special  Defence,  and  Safety,  to  Assemble,  Martial,  Array,  and  put  in  Warlike 
Posture  the  Inhabitants  of  the  said  Colony,  and  to  Commissionate,  Impower, 
and  Authorize  such  Person,  or  Persons  as  they  shall  think  fit,  to  Lead  and 
Conduct  the  said  Inhabitants,  and  to  Encounter,  Expulse,  Repel,  and  Resist 
by  Force  of  Arms,  as  well  by  Sea,  as  by  Land,  and  also  to  Kill,  Slay,  and 
Destroy  by  all  fitting  Ways,  Enterprizes,  and  Means  whatsoever,  all,  and 
every  such  Person,  or  Persons  as  shall  at  any  Time  hereafter  Attempt,  or 
Enterprize  the  Destruction,  Invasion,  Detriment,  or  Annoyance  of  the  said 
Inhabitants,  or  Plantation,  and  to  Use,  and  Exercise  the  Law  Martial  in  such 
Cases  only  as  Occasion  shall  Require.  .  .  .  And  Know  Ye  further.  That  We 
of  Our  abundant  Grace,  certain  Knowledge,  and  meer  Motion,  have  Given, 
Granted,  and  Confirmed,  and  by  these  Presents  for  Us,  Our  Heirs,  and  Suc- 
cessors, do  Give,  Grant,  and  Confirm  unto  the  said  Governour,  and  Company, 
and  their  Successors,  all  that  part  of  Our  Dominions  in  New-England  in  Amer- 
ica, Bounden  on  the  East  by  Narraganset-River,  commonly  called  Narraganset- 
Bay,  where  the  said  River  falleth  into  the  Sea:  And  on  the  North  by  the  Line 
of  the  Massachusetts -Plantation,  &  on  the  South  by  the  Sea:  And  in 
Longitude  as  the  Line  of  the  Massachusetts-Colony,  running  from  East  to 
West,  That  is  to  say,  From  the  said  Narraganset-Bay  on  the  East,  to  the 
South  Sea  on  the  West  part,,  with  the  Islands  thereunto  Adjoining,  together 
with  all  Firm  Lands,  Soyles,  Grounds,  Havens,  Ports,  Rivers,  Waters,  Fish- 
ings, Mines,  Minerals,  Precious  Stones,  Quarreys,  &  all  &  singular  other 
Commodities,  Jurisdictions,  Royalties,  Privileges,  Franchises,  Preheminences, 
and  Hereditaments  whatsoever,  within  the  said  Tract,  Bounds,  Lands,  and 
Islands  aforesaid,  or  to  them,  or  any  of  them  belonging.  To  have  and  to  Hold 
the  same  unto  the  said  Governour  &  Company,  their  Successors,  and  Assigns 
for  ever,  upon  Trust,  and  for  the  Use,  and  Benefit  of  themselves,  and  their 
Associates,  Freemen  of  the  said  Colony,  their  Heirs,  and  Assigns,  to  be  holden 
of  Us,  Our  Heirs,  and  Successors,  as  of  Our  Manner  of  East-Greenwich,  in 
Free  and  Common  Soccage,  and  not  in  Capite,  nor  by  Knights  Service,  Yield- 
ing, and  Paying  therefore  to  Us,  our  Heirs,  and  Successors,  only  the  Fifth  part 
of  all  the  Oar  of  Gold,  and  Silver,  which  from  time  to  Time,  and  at  all  times 
hereafter,  shall  be  there  Gotten,  Had,  or  Obtained,  in  lieu  of  all  Services, 
Duties,  and  Demands  whatsoever,  to  be  to  Us,  Our  Heirs,  or  Successors  there- 
for, or  thereout  Rendered,  Made,  or  Paid.  ,  ,  ,   " 

The  extracts  quoted  have  been  taken  from  the  Charter  of  1662  as  it  appears 
in  Acts  and  Laws  of  Connecticut,  edition  of  1750.  —  Ed. 


12  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

enjoy  all  liberties  and  immunities  of  natural  born  subjects,  and 
the  soil  of  the  whole  Province  is  granted  to  the  Governor  and 
Company,  and  their  successors  and  assigns  for  ever,  upon  trust 
and  for  the  use  and  benefit  of  themselves  and  their  associates, 
their  heirs  and  assigns,  to  be  holden  of  his  Majestie,  as  of  the 
Mannor  of  East  Greenwich  in  free  and  comon  soccage. 

By  the  comon  law  of  England,  which  is  what  the  Charter  has 
a  view  to,  it  is  undoubted  that  real  estates  descend  to  the  eldest 
son  of  him  that  was  last  seized  in  fee  as  his  heir  at  law;  and  neither 
an  administrator  or  an  Ecclesiastical  Court  have  any  thing  to  do 
therewith,  and  by  the  law  of  England  an  only  daughter  cannot 
be  coheir  with  an  only  son,  but  the  son  is  absolute  and  sole  heir 
to  the  father,  and  must  as  such  inherit  his  real  estate  undevised 
by  will,  and  we  take  it  that  where  an  estate  of  inheritance  is 
granted  under  the  Great  Seal  of  Great  Brittain,  which  this  Charter 
does,  that  the  same  is  descendible  according  to  the  course  of  the 
common  law,  and  we  also  take  it  that  all  our  Plantations  carry 
with  them  the  common  law  of  their  mother  country.  .  .  .  We 
therefore  insist  this  law  is  null  and  void,  as  being  contrary  to  the 
law  of  this  realm,  unreasonable,  and  against  the  tenour  of  their 
Charter,  and  consequently  the  Province  had  no  power  to  make 
such  a  law  and  the  same  is  void. 

Note.  The  laws  of  Connecticut  are  not  by  their  Charter  directed 
to  be  laid  before  the  Crown  for  their  approbation  or  disallowance, 
so  that  there  is  no  other  way  to  avoid  any  laws  they  shall  make 
but  by  seeing  if  they  are  agreeable  to  the  powers  of  their  Charter, 
which  if  they  are  not,  then  we  apprehend  they  cannot  be  con- 
sidered as  any  laws  at  all,  since  a  formal  repeal  of  them  cannot 
be  had  otherwise  than  by  voiding  the  Charter.  .  .  . 

Willes,  for  respondent.^  Other  words  give  the  colony  power  to 
make  all  laws  whatsoever.  The  colony  is  not  like  a  corporation 
in  England.  A  corporation  in  England  is  bound  by  the  laws  here. 
The  provision  that  the  colony  may  not  make  laws  repugnant  to 
the  laws  of  England  means  that  the  colony  is  not  to  repeal  the 
laws  of  England  wherein  the  plantations  are  mentioned.  If  the 
provision  be  extended  to  all  laws  variant  from  the  laws  of  England, 
the  colony  can  make  no  laws  at  all. 

1  The  points  attributed  to  the  two  counsel  for  the  respondent  have  been 
based  upon  the  scanty  memoranda  taken  by  counsel  for  the  appellant  and 
preserved  in  5  Mass.  Hist.  Soc.  Coll.,  Sixth  .Series,  495-496.  —  Ed. 


WINTHROP    V.    LECHMERE.  13 

Booth,  for  the  respondent.  The  clause  against  making  laws 
contrary  to  the  laws  of  England  pertains  to  public  matters,  trade, 
etc. 

Committee  for  Hearing  Appeals   from  the  Plantations. 

In  obedience  to  an  Order  in  Council  .  .  .  referring  to  this  Com- 
mittee the  humble  petition  and  appeal  of  John  Winthrop  .  .  . 
their  Lordships  .  .  .  took  the  said  petition  into  consideration.  .  .  . 

Their  Lordships  having  heard  all  parties  concerned  by  their 
counsell  learned  in  the  law  on  the  said  petition  and  appeal,  and 
there  being  laid  before  their  Lordships  an  act  passed  by  the  Gov- 
ernor and  Company  of  that  Colony  entitled  An  Act  for  the  Settle- 
ment of  Intestates  Estates,  by  which  act  (amongst  other  things) 
administrators  of  persons  dying  intestate  are  directed  to  inventory 
all  the  estate  whatsoever  of  the  person  so  deceased,  as  well  move- 
able as  not  moveable,  and  to  deliver  the  same  upon  oath  to  the 
Court  of  Probates,  and  by  the  said  Act  (debts,  funerals,  and  just 
expenses  of  all  sorts,  and  the  dower  of  the  wafe  (if  any)  being  first 
allowed)  the  said  Court  of  Probates  is  empowered  to  distribute  all 
the  remaining  estate  of  any  such  intestate,  as  well  real  as  personal, 
by  equal  portions  to  and  amongst  the  children  and  such  as  legally 
represent  them,  except  the  eldest  son  who  is  to  have  two  shares 
or  a  double  portion  of  the  whole,  ...  do  agree  humbly  to  report 
as  their  opinion  to  your  Majesty,  that  the  said  Act  for  the  Settle- 
ment of  Intestates  Estates  should  be  declared  null  and  void,  being 
contrary  to  the  laws  of  England,  in  regard  it  makes  lands  of  in- 
heritance distributable  as  personal  estates,  and  is  not  w^arranted 
by  the  Charter  of  that  Colony;  and  that  the  said  .  .  .  sentences 
.  .  .  rejecting  the  inventory  .  .  .  because  it  did  not  contain  the 
real  as  well  as  personal  estate  .  .  .  may  be  all  reversed  and  sett 
aside;  .  .  .  and  that  the  said  sentence,  .  .  .  vacating  the  said 
letters  of  administration  granted  to  the  petitioner  and  granting 
administration  to  the  said  Thomas  and  Ann  Lechmere,  should 
also  be  reversed  and  sett  aside.  .  .  . 

And  by  the  King  in  Council  it  was  so  decreed.^ 

1  The  decree  may  be  found  in  5  Mass.  Soc.  Hist.  Coll.  Sixth  Series,  496- 
509,  or  7  Conn.  Colonial  Records,  571-579,  or  Coxe's  Judicial  Power,  370- 
382.  —  Ed. 


14  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

REX  V.   CUTBUSH. 

King's  Bench.     1768. 

t 

[4  Burrow,  2204.] 

This  was  an  Information  in  Nature  of  a  Quo  Warranto,  brought 
against  the  Defendant,  to  shew  by  what  Warrant  he  claimed  to  be 
a  Common-Council-Man  of  Maidstone:  Which  is  alledged  to  be 
an  ancient  Town  and  Corporation  consisting  of  a  Mayor  Jurats 
and  Commonalty;  and  that  the  Office  of  a  Common-Council- 
Man  was  a  public  office  therein. 

The  Defendant,  in  his  Plea,  admits  this;  but  goes  on  and  shews 
a  Charter  of  Incorporation  dated  17th  June  21  G.  2.  by  the  Name 
of  the  Mayor  Jurats  and  Commonalty  of  the  King's  Town  and 
Parish  of  Maidstone  in  the  County  of  Kent;  ordaining  that  Thir- 
teen of  the  Inhabitants  should  be  chosen  Jurats,  and  One  of  the 
Jurats  Mayor;  of  which  Thirteen  Inhabitants,  the  Twelve  others 
should  be  aiding  and  assisting  to  the  Mayor;  and  that  there  should 
be  Forty  of  the  remaining  principal  Inhabitants  chosen  to  be,  and 
should  be  and  be  called  the  Common-Council  of  the  said  Town 
and  Parish.  That  the  said  Charter  directed  that  the  Mayor 
Jurats  and  Common-Council  should  have  Power  of  making  By- 
Laws.  That  it  places  the  Election  of  Common-Council-Men  in 
the  Mayor  Jurats  and  Commonalty  or  the  Majority  of  them. 
That  the  Corporation  accepted  this  Charter:  And  afterwards, 
viz.  on  14th  March  1767,  the  then  Mayor  Jurats  and  Common- 
Council,  in  due  Manner  assembled  for  that  Purpose,  made  a 
Bye-Law;  which  By-Law  recited  the  said  Charter  and  the  Power 
thereby  given  them;  and  that  the  Commonalty  of  the  said  Town 
and  Parish  were  very  numerous,  and  the  Admission  of  them  to 
vote  in  the  Election  of  Common-Council-Men  of  the  said  Town  and 
Parish  had  been  found  hy  Experience  to  be  attended  with  many 
Inconveniencies,  and  had  from  Time  to  Time  occasioned  divers 
Riots  and  Disorders  and  great  popular  Confusion  within  the  said 
Town  and  Parish,  and  had  very  much  disturbed  and  broken  in 
upon  the  Peace  good  Order  and  Government  of  the  said  Town 
and  Parish ;  and  further  recited  that  such  Inconveniencies  would  be 
likely  to  be  remedied,  if  the  Right  of  electing  of  the  Common- 
Council-Men  of  the  said  Town  and  Parish  were  to  be  confined  to 
the  Mayor  Jurats  and  such  of  the  Commonalty  of  the  said  Town 
and  Parish  who  then  were  or  should  be  of  the  Common-Council  of 
the  said  Town  and  Parish  for  the  Time  being,  and  Sixty  Others  of 


REX   V.    CUTBUSH.  15 

the  said  Commonalty  who  were  or  should  be  the  senior  common 
Freemen  for  the  Time  being  of  the  said  Town  and  Parish,  as  they 
should  stand  in  Order  and  Place  of  Seniority  upon  the  Books  of 
Admission  of  Freemen  of  the  said  Town  and  Parish;  such  Sixty 
not  being  either  Mayor  Jurats  or  of  the  Common-Council  of  the 
said  Town  and  Parish.  After  this  Recital  and  Preface,  It  is  then 
(for  the  preventing  the  like  Inconveniences  for  the  future,  and  for 
the  avoiding  of  popular  Confusion  and  Disorder  in  the  Election  of 
Common-Council-Men  within  and  for  the  said  Town  and  Parish,) 
ORDAINED  that  upon  every  or  any  future  Election  of  a  Common- 
Council-Man  or  Common-Council-Men  of  the  said  Town  and 
Parish,  the  Mayor  Jurats  and  such  of  the  Commonalty  of  the  said 
ToAvn  and  Parish  who  then  were  or  should  be  of  the  Common- 
Council  of  the  said  Town  and  Parish  for  the  Time  being,  and 
Sixty  Others  of  the  said  Commonalty  who  then  were  or  should  be 
the  SENIOR  common  Freemen  for  the  Time  being  of  the  said  Town 
and  Parish,  as  they  should  from  Time  to  Time  stand  in  Order  and 
Place  of  Seniority  upon  the  Books  of  Admission  of  Freemen  of  the 
said  Town  and  Parish,  (such  Sixty  not  being  either  Mayor  Jurats 
or  of  the  Common-Council  of  the  said  Town  and  Parish,)  or  the 
major  Part  of  such  Mayor  Jurats  Common-Council  and  Sixty 
Senior  common  Freemen  for  the  Time  being  of  the  said  Town  and 
Parish,  should  meet  and  assemble  &c.;  and  being  so  met  and 
assembled  should,  by  Themselves,  without  the  presence  or  Con- 
currence of  any  other  of  the  Commonalty  of  the  said  To"wn  and 
Parish,  elect  and  choose  One  or  more  of  the  principal  Inhabitants 
of  the  said  Town  and  Parish  to  be  a  Common-Council-Man  or 
Common  Council-Men  of  the  said  Town  and  Parish.  They  aver 
that  the  said  By-Law,  from  the  Time  of  the  making  thereof,  had 
been  and  still  is  in  full  Force  and  Virtue,  and  in  no  wise  annulled 
revoked  or  repealed.  The  Defendant  then  shews  that  He  was 
elected  a  Common  Council-Man  pursuant  to  this  By-Law:  And  by 
that  Warrant  He  has  ever  since  exercised  and  still  claims  to  exercise 
the  said  Office. 

The  King's  Coroner  and  Attorney,  in  his  Replication,  prays 
Oyer  of  these  Letters  Patent  of  21  G.  2.  which  being  read  and 
heard.  He  demurs  (generally)  to  the  Defendant's  Plea:  And  the 
Defendant  joins  in  Demurrer. 

This  Demurrer  was  argued  on  Wednesday  27th  of  January  last, 
by  Mr.  Cox  for  the  Prosecutor,  and  Mr.  Ashhurst  for  the  Defendant; 
and  again  now,  by  Mr.  Morton  for  the  Prosecutor,  and  Mr.  Serjeant 
Leigh  for  the  Defendant. 


16  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

The  Court  were  clear  and  unanimous,  That  this  By-Law  was 
bad.  They  held  it  to  be  manifestly  contrary  to  the  Intention  of 
the  Charter:  (Which,  Lord  Mansfield  said,  had  passed  upon 
hearing  all  Parties,  and  after  much  Litigation). 

It  is  made  by  a  Part  of  the  Corporation,  to  deprive  the  Rest 
of  their  Right  to  elect,  without  their  Consent.  The  Charter  gives 
this  Right  to  the  whole  Body  of  the  Commonalty:  The  By-Law 
confines  it  to  a  narrow  Compass  of  the  Sixty  Seniors  only.  This 
expressly  contradicts  the  Charter. 

Mr.  Justice  Yates  observed,  that  in  the  Case  of  Corporations, 
4  Co.  77.  b.  the  By-Law  which  was  put  in  Question,  did  not  vary 
the  Constitution.  And  the  great  Ground  of  that  Resolution  was 
"  that  it  must  be  made  by  common  Assent."  But  a  By-Law  made 
by  a  Part  of  the  Corporation  to  exclude  the  Rest,  without  their 
Assent,  is  not  good. 

And  He  likewise  agreed  to  what  Lord  Mansfield  had  before  ob- 
served, That  where  a  Corporation  is  by  Charter,  and  the  Com- 
mon-Council is  created  by  the  Charter,  they  ought  (as  being  the 
Creature  of  the  Charter)  to  be  restrained  from  making  any  By- 
Laws  inconsistent  with  it,  or  counteracting  the  End  Intention 
and  Directions  of  it:  Though  it  may  not  be  unreasonable  to 
allow  a  greater  Latitude  in  making  Bj^-Laws  for  the  Good  of  the 
Corporation,  to  the  Common-Council  of  a  Corporation  by  Pre- 
scription, where  the  Common-Council  is  by  Prescription,  and  such 
Prescription  authorizes  them  to  make  By-Laws  for  the  Good  of 
the  Corporation.  Per  Cur',  unanimously  — 

Judgment  of  Ouster. 


CAMPBELL  V.   HALL. 
King's  Bench.     1774. 

[Cowper,  204.]  i 

This  was  an  action  of  money  had  and  received,  brought  to 
recover  export  duties  which  had  been  exacted  from  the  plaintiff 

1  s.  c.  Lofft,  655,  and  also  20  Howell's  State  Trials,  239,  in  which  latter  place 
the  arguments  of  counsel  are  given  in  extenso. 

The  statement  has  been  framed  from  the  opinion.  —  Ed. 


CAMPBELL    r.    HALL.  17 

by  the  defendant,  a  collector  for  the  King  of  Great  Britain  on  the 
island  of  Grenada.  A  special  verdict  was  found,  to  the  effect 
that  the  island  had  been  captured  from  the  French  and  had  been 
ceded  by  treaty  signed  Feb.  10,  1763,  that  by  proclamations  under 
the  great  seal,  dated  Oct.  7,  1763,  and  Apr.  9,  1764,  the  crowii 
empowered  the  governor,  so  soon  as  the  state  of  the  island  should 
permit,  to  summon  a  general  assembly,  in  the  manner  used  in 
the  colonies  and  provinces  of  America,  such  assembly  to  make 
laws  with  consent  of  the  governor  and  council,  that  the  governor 
arrived  on  Dec.  14,  1764,  that  before  the  end  of  1765  an  assembly 
met,  but  that  before  the  governor  left  England  letters  patent 
under  the  great  seal,  dated  July  20,  1764,  directed  an  export  duty 
of  four  and  one  half  per  cent  upon  all  dead  commodities,  the 
produce  of  the  island,  and  that  the  defendant  as  collector  had 
collected  this  duty  from  the  plaintiff  and  still  retained  it  in  his 
hands. 

Lord  Mansfield,  C.  J.  .  .  .  The  general  question  that  arises 
out  of  all  these  facts  found  by  the  special  verdict,  is  this;  whether 
the  letters  patent  under  the  great  seal,  bearing  date  the  20th  July, 
1764,  are  good  and  valid  to  abohsh  the  French  duties;  and  in  lieu 
thereof  to  impose  the  four  and  half  per  cent  duty  above  men- 
tioned, which  is  paid  in  all  the  British  Leeward  Islands  ? 

It  has  been  contended  at  the  bar,  that  the  letters  patent  are  void 
on  two  points;  the  first  is,  that  although  they  had  been  made 
before  the  proclamation  of  the  7th  October,  1763,  yet  the  king 
could  not  exercise  such  a  legislative  power  over  a  conquered 
country. 

The  second  point  is,  that  though  the  king  had  sufficient  power 
and  authority  before  the  7th  October,  1763,  to  do  such  legislative 
act,  yet  before  the  letters  patent  of  the  20th  July,  1764,  he  had 
divested  himself  of  that  authority.  ... 

A  country  conquered  by  the  British  arms  becomes  a  dominion 
of  the  king  in  the  right  of  his  crouTi;  and,  therefore,  necessarily 
subject  to  the  legislature,  the  parliament  of  Great  Britain.  .  .  . 
If  the  king  (and  when  I  say  the  king,  I  always  mean  the  kmg 
without  the  concurrence  of  parliament)  has  a  power  to  alter  the 
old  and  to  introduce  new  laws  in  a  conquered  country,  this  legis- 
lation being  subordinate,  that  is,  subordinate  to  his  own  authority 
in  parliament,  he  cannot  make  any  new  change  contrary  to  fun- 
damental principles:  he  cannot  exempt  an  inhabitant  from  that 
particular  dominion;  as  for  instance,  from  the  laws  of  trade,  or 
from  the  power  of  parliament,  or  give  him  privileges  exclusive  of 


18  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 

his  other  subjects;  and  so  in  many  other  instances  which  might 
be  put. 

But  the  present  change,  if  it  had  been  made  before  the  7th 
October,  1763,  would  have  been  made  recently  after  the  cession 
of  Grenada  by  treaty,  and  is  in  itself  most  reasonable,  equitable, 
and  political;  for  it  is  putting  Grenada,  as  to  duties,  on  the  same 
footing  with  all  the  British  Leeward  Islands.  If  Grenada  paid 
more  it  would  have  been  detrimental  to  her;  if  less,  it  must  be 
detrimental  to  the  other  Leeward  Islands:  nay,  it  would  have 
been  carrying  the  capitulation  into  execution,  which  gave  the 
people  of  Grenada  hopes,  that  if  any  new  tax  was  laid  on,  their 
case  would  be  the  same  with  their  fellow  subjects  in  the  other 
Leeward  Islands. 

The  only  question  then  on  this  first  point  is.  Whether  the 
king  had  a  power  to  make  such  change  between  the  10th  of  Feb- 
ruary, 1763,  the  day  the  treaty  of  peace  was  signed,  and  the  7th 
October,  1763  ?  Taking  these  propositions  to  be  true  which  I 
have  stated;  the  only  question  is.  Whether  the  king  had  of  him- 
self that  power  ? 

It  is  left  by  the  constitution  to  the  king's  authority  to  grant 
or  refuse  a  capitulation:  if  he  refuses,  and  puts  the  inhabitants 
to  the  sword  or  exterminates  them,  all  the  lands  belong  to  him. 
If  he  receives  the  inhabitants  under  his  protection  and  grants 
them  their  property,  he  has  a  power  to  fix  such  terms  and  con- 
ditions as  he  thinks  proper.  He  is  intrusted  with  making  the 
treaty  of  peace:  he  may  yield  up  the  conquest,  or  retain  it  upon 
what  terms  he  pleases.  These  powers  no  man  ever  disputed, 
neither  has  it  hitherto  been  controverted  that  the  king  might 
change  part  or  the  whole  of  the  law  or  political  form  of  govern- 
ment of  a  conquered  dominion.  .  .  . 

It  is  not  lo  be  wondered  at  that  an  adjudged  case  in  point  has 
not  been  produced.  No  question  was  ever  started  before,  but 
that  the  king  has  a  right  to  a  legislative  authority  over  a  con- 
quered country;  it  was  never  denied  in  Westminster-hall;  it 
never  was  questioned  in  parliament.  Coke's  Report  of  the 
arguments  and  resolutions  of  the  judges  in  Calvin's  case  lays  it 
down  as  clear.  If  a  king  (says  the  book)  comes  to  a  kingdom  by 
conquest,  he  may  change  and  alter  the  laws  of  that  kingdom; 
but  if  he  comes  to  it  by  title  and  descent,  he  cannot  change  the 
laws  of  himself  without  the  consent  of  parliament  (7  Rep.  17  b). 
It  is  plain  he  alludes  to  his  own  country,  because  he  alludes  to  a 
country  where  there  is  a  parliament. 


CAMPBELL   V.    HALL.  19 

The  authority  also  of  two  great  names  has  been  cited,  who 
take  the  proposition  for  granted.  In  the  year  1722,  the  assembly 
of  Jamaica  being  refractory,  it  was  referred  to  Sir  Phihp  Yorke 
and  Sir  Clement  Wearge,  to  know  "  what  could  be  done  if  the 
assembly  should  obstinately  continue  to  withold  all  the  usual 
supplies."  They  reported  thus:  "  If  Jamaica  was  still  to  be 
considered  as  a  conquered  island,  the  king  had  a  right  to  levy 
taxes  upon  the  inhabitants;  but  if  it  was  to  be  considered  in 
the  same  light  as  the  other  colonies,  no  tax  could  be  imposed  on 
the  inhabitants  but  by  an  assembly  of  the  island,  or  by  an  act  of 
parhament."  .  .  . 

A  maxim  of  constitutional  law  as  declared  by  all  the  judges  in 
Calvin's  case,  and  which  two  such  men,  in  modern  times,  as  Sir 
Philip  Yorke  and  Sir  Clement  Wearge,  took  for  granted,  will 
require  some  authorities  to  shake. 

But  on  the  other  side,  no  book,  no  saying,  no  opinion  has  been 
cited;  no  instance  in  any  period  of  history  produced,  where  a 
doubt  has  been  raised  concerning  it.  The  counsel  for  the  plain- 
tiff no  doubt  labored  this  point  from  a  diffidence  of  what  might 
be  our  opinion  on  the  second  question.  But  upon  the  second 
point,  after  full  consideration  we  are  of  opinion,  that  before  the 
letters  patent  of  the  20th  July,  1764,  the  king  had  precluded  him- 
self from  the  exercise  of  a  legislative  authority  over  the  island 
of  Grenada. 

The  first  and  material  instrument  is  the  proclamation  of  the 
7th  October,  1763.  See  what  it  is  that  the  king  there  says,  with 
what  view,  and  how  he  engages  himself  and  pledges  his  word. 

"  For  the  better  security  of  the  liberty  and  property  of  those 
who  are  or  shall  become  inhabitants  of  our  island  of  Grenada, 
we  have  declared  by  this  our  proclamation,  that  we  have  com- 
missioned our  governor  (as  soon  as  the  state  and  circumstances 
of  the  colony  will  admit)  to  call  an  assembly  to  enact  laws,"  &c. 
With  what  view  is  this  made  ?  It  is  to  invite  settlers  and  subjects .' 
and  why  to  invite  ?  That  they  might  think  their  properties, 
&c.  more  secure  if  the  legislation  was  vested  in  an  assembly,  than 
under  a  governor  and  council  only. 

Next,  having  established  the  constitution,  the  proclamation  of 
the  20th  ]\Iarch,  1764,  invites  them  to  come  in  as  purchasers: 
in  further  confirmation  of  all  this,  on  the  9th  April,  1764,  three 
months  before  July,  an  actual  commission  is  made  out  to  the 
governor  to  call  an  assembly  as  soon  as  the  state  of  the  island 
would  admit  thereof.     You  observe,  there  is  no  reservation  in  the 


20  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 

proclamation  of  any  legislature  to  be  exercised  by  the  king,  or  by 
the  governor  and  council  under  his  authority  in  any  manner, 
until  the  assembly  should  meet;  but  rather  the  contrary:  for 
whatever  construction  is  to  be  put  upon  it,  which,  perhaps,  may 
be  very  difficult  through  all  the  cases  to  which  it  may  be  applied, 
it  alludes  to  a  government  by  laws  in  bemg,  and  by  courts  of 
justice,  not  by  a  legislative  authoritv  unti'  an  assembly  should 
be  called.  There  does  not  appear  from  the  special  verdict  any 
impediment  to  the  calling  an  asseml)ly  immediately  on  the  arrival 
of  the  governor,  which  was  in  December,  17G4.  But  no  assembly 
was  called  then  or  at  any  time  afterwards,  till  the  end  of  the  year 
1765. 

We  therefore  think  that  by  the  two  proclamations  and  the 
commission  to  governor  Melville,  the  king  had  immediately  and 
irrecoverably  granted  to  all  who  were  or  should  l^ecome  inhabi- 
tants, or  who  had,  or  should  acquire  property  in  the  island  of 
Grenada,  or  more  generally  to  all  whom  it  might  concern,  that 
the  subordinate  legislation  over  the  island  should  be  exercised  by 
an  assembly  with  the  consent  of  the  governor  and  council,  in 
like  manner  as  the  other  islands  belonging  to  the  king. 

Therefore,  though  the  al)olishing  the  duties  of  the  French  king 
and  the  substituting  this  tax  in  its  stead,  which  according  to  the 
finding  in  this  special  verdict  is  paid  in  all  the  British  Leeward 
Islands,  is  just  and  equitable  with  respect  to  Grenada  itself,  and 
the  other  British  Leeward  Islands,  yet,  through  the  inattention 
of  the  king's  servants,  in  inverting  the  order  in  which  the  instru- 
ments should  have  passed,  and  been  notoriously  published,  the 
last  act  is  contradictory  to,  and  a  violation  of  the  first,  and  is, 
therefore,  void.  How  proper  soever  it  may  be  in  respect  to  the 
object  of  the  letters  patent  of  the  20th  July,  1764,  to  use  the  words 
of  Sir  Philip  Yorke  and  Sir  Clement  Wearge,  "  it  can  only  now  be 
done,  by  the  assembly  of  the  island,  or  by  an  act  of  the  parhament 
of  Great  Britain." 

The  consequence  is,  judgment  must  be  given  for  the  plaintiff.^ 

^  As  to  the  exercise  of  the  powers  of  municipal  government  by  an  occupying 
army,  see  New  Orleans  v.  Steamship  Co.,  20  Wall.  387  (1874). 

As  to  the  power  of  the  President  to  estabUsh  provisional  courts  in  acquired 
territory,  see  Cross  v.  Harrison,  16  How.  164  (1853)  (CaUfomia);  Leitensdorfer 
V.  Webb,  20  How.  176  (1857)  (New  Mexico);  Santiago  v.  Nogueras,  post, 
(1909)  (Porto  Rico).  —  Ed. 


HOLMES    V.    WALTON.  21 

HOLMES  V.  WALTON. 
Supreme  Court  of  New  Jersey.     1780. 

[4  American  Historical  Review,  456.]  ^ 

Certiorari  to  a  justice  of  the  peace. 

Walton,  acting  under  a  New  Jersey  statute  passed  Oct.  8,  1778, 
which  made  it  lawful  for  any  person  to  seize  goods  brought  into 
the  American  Unes  from  any  place  in  possession  of  the  British, 
and  which  gave  the  proceeds  of  the  goods  to  the  person  making 
the  seizure,  had  seized  goods  in  possession  of  Holmes  and  Ketcham, 
and,  in  conformity  to  the  statute,  had  taken  the  goods  before  a 
justice  of  the  peace.  The  statute  required  the  justice,  on  the 
demand  of  either  party,  to  grant  a  jury  of  six  men;  and  in  case 
of  a  verdict  it  forbade  an  appeal.  After  verdict  of  a  jury  of  six 
men  in  favor  of  Walton,  the  justice  of  the  peace  gave  judgment 
accordingly. 

Willcocks,  for  the  plaintiffs  in  certiorari.  .  .  .  The  jury  sworn 
to  try  the  above  cause  and  on  whose  verdict  judgment  was  entered 
consisted  of  six  men  only,  when  by  the  laws  of  the  land  it  should 
have  consisted  of  twelve  men.  .  .  .  The  jury  who  tried  the  said 
plaint  before  the  said  justice  consisted  of  six  men  only  contrary 
to  the  constitution  of  New  Jersey.  .  .  r 

^  The  report  here  given  is  condensed  from  the  more  extended  report  given 
by  Professor  Austin  Scott  in  the  American  Historical  Review,  and  the  two 
succeeding  notes  are  from  the  same  sourfce.  —  Ed. 

2  Section  XXII  of  the  constifution  of  New  Jersey,  adopted  July  2,  1776, 
reads  as  follows:  "  That  the  common  law  of  England,  as  well  as  so  much  of 
the  statute  law  as  have  been  heretofore  practised  in  this  colony  shall  still 
remain  in  force  until  they  shall  be  altered  by  a  future  law  of  the  legislature; 
such  parts  only  excepted  aa  are  repugnant  to  the  rights  and  privileges  con- 
tained in  this  Charter;  and  that  the  inestimable  right  of  trial  by  jury  shall 
remain  confirmed  as  a  part  of  the  law  of  this  colony,  without  repeal  forever." 
The  first  section  of  the  same  constitution  prescribes  as  a  part  of  the  oath  to 
be  taken  by  each  member  of  the  legislature,  that  he  will  not  assent  to  any 
law,  vote,  or  proceeding  to  repeal  or  annul  "  that  part  of  the  twenty-second 
section  respecting  trial  by  jury." 

The  assumption  that  the  phrase  "  trial  by  jury  "  as  thus  used  means  exactly 
twelve  jurors  must  find  its  warrant  farther  back.  In  addition  to  immemorial 
custom,  the  "  common  law  "  of  England,  which  may  have  been  held  to  have 
had  validity  in  this  case,  two  documents  may  have  been  appealed  to  as  fun- 
damentally relevant  and  as  constituting  in  New  Jersey  a  part  of  the  "  law  of 
the  land":  the  first,  Chapter  XXII  of  the  West  Jersey  "  Concessions  and 
Agreements  "  of  1676,  "  Not  to  be  altered  by  the  legislative  authority,"  which 
begins  thus,  "  That  the  trial  of  all  causes,  civil  and  criminal,  shall  be  heard 
and  decided  by  the  verdict  or  judgment  of  twelve  honest  men  of  the  neighbor- 


22  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

Curia  advisare  vult. 

Minute,  Sept.  7,  1780:  — 

This  cause  having  been  argued  several  terms  past  and  the  court  ^ 
having  taken  time  to  consider  the  same,  and  being  now  ready 
to  dehver  their  opinion,  gave  the  same  seriation  for  the  plaintiffs 
in  certiorari.  And  on  motion  of  Boudinot  for  the  plaintiffs, 
judgment  is  ordered  for  the  plaintiffs,  and  that  the  judgment  of 
the  justice  in  the  court  below  be  reversed  and  the  said  plaintiffs 
be  restored  to  all  things,  etc. 


HAYBURN'S   CASE. 

Supreme  Court  of  the  United  States.     1792. 

[2  Dallas,  409.] 

This  was  a  motion  for  a  mandainus  to  be  directed  to  the  Circuit 
Court  for  the  District  of  Pennsylvania,  commanding  the  said 
court  to  proceed  in  a  certain  petition  of  Wm.  Hay  burn,  who  had 
applied  to  be  put  on  the  pension  list  of  the  United  States,  as  an 
invalid  pensioner. 

The  principal  case  arose  upon  the  act  of  Congress  passed  the 
23d  of  March,  1792.2 

The  Attorney  General  {Randolph),  for  the  motion.  .  .  . 

The  Court  observed,  that  they  would  hold  the  motion  under 
advisement,  until  the  next  term;  but  no  decision  was  ever  pro- 
nounced, as  the  Legislature,  at  an  intermediate  session,  provided, 
in  another  way,^  for  the  relief  of  the  pensioners.* 

hood."  The  second  was  a  formal  declaration  of  the  "  Rights  and  Privileges  " 
passed  by  the  House  of  Representatives  in  East  Jersey  on  March  13th,  1699, 
and  accepted  by  the  governor  and  council,  which  asserted  that  "  all  trials 
shall  be  by  the  verdict  of  twelve  men."  Other  acts  of  the  assembly  in  each 
of  the  two  Jersey  provinces  before  their  union  in  1702,  show  that  the  right  to 
a  trial  before  a  jury  of  twelve  men  was  regarded  as  fundamental;  notably 
the  act  of  November,  1681,  in  West  Jersey,  and  that  of  March,  1083,  in  East 
Jersey.     Learning  and  Spicer,  Grants  and  Concessions,  pp.  235,  428.  —  Rep. 

^  A  full  bench  was  present,  David  Brearly,  the  Chief  Justice,  with  Isaac 
Smith  and  John  Cleves  Symmes,  his  associates.  —  Rep. 

2  1  U.  S.  St.  at  Large,  243.  —  Ed.  »  1  U.  S.  St.  at  Large,  325.  —  Ed. 

*  The  Circuit  court  for  the  district  of  New  York  (consisting  of  Jay,  Chief 
Justice,  Gushing,  Justice,  and  Duane,  District  Judge)  proceeded  on  the 


MARBURY   V.    MADISON.  23 

MARBURY  V.  MADISON,  Secretarj-  of  State  of  the 
United  States. 

Supreme  Court  of  the  United  States.     1803. 

[1  Cranch,  137.]  ^ 

At  December  term,  1801,  Marbury,  by  his  counsel,  Charles 
Lee,  lately  Attorney  General,  moved  the  court  for  a  rule  to  James 

5th  of  April,  1792,  to  take  into  consideration  the  act  of  Congress  entitled 
"  An  act  to  provide  for  the  settlement  of  the  claims  of  widows  and  orphans 
barred  by  the  limitations  heretofore  established,  and  to  regulate  the  claims  to 
invalid  pensions,"  and  were,  thereupon,  unanimously,  of  opinion  and  agreed. 

"  That  by  the  Constitution  of  the  United  States,  the  government  thereof 
is  divided  into  three  distinct  and  independent  branches,  and  that  it  is  the  duty 
of  each  to  abstain  from,  and  to  oppose,  encroachments  on  either. 

"  That  neither  the  Legidalive  not  the  Executive  branches  can  constitu- 
tionally assign  to  the  Judicial  any  duties,  but  such  as  are  properly  judicial, 
and  to  be  performed  in  a  judicial  manner. 

"  That  the  duties  assigned  to  the  Circuit  courts,  by  this  act,  are  not  of  that 
description,  and  that  the  act  itself  does  not  appear  to  contemplate  them  as 
such;  in  as  much  as  it  subjects  the  decisions  of  these  courts,  made  pursuant 
to  those  duties,  first  to  the  consideration  and  suspension  of  the  Secretary  of 
War,  and  then  to  the  revision  of  the  Legislature;  whereas  by  the  Constitution, 
neither  the  Secretary  at  War,  nor  any  other  Executive  ofTicer,  nor  even  the 
Legislature,  are  authorized  to  sit  as  a  court  of  errors  on  the  judicial  acts  or 
opinions  of  this  court. 

"  As,  therefore,  the  business  assigned  to  this  court,  by  the  act,  is  not  judi- 
cial, nor  directed  to  be  performed  judicially,  the  act  can  only  be  considered 
as  appointing  commissioners  for  the  purposes  mentioned  in  ii,hy official  instead 
of  personal  descriptions. 

"  That  the  Judges  of  this  court  regard  themselves  as  being  the  commissioners 
designated  by  the  act,  and  therefore  as  being  at  liberty  to  accept  or  decUne 
that  office. 

"  That  as  the  objects  of  this  act  are  exceedingly  benevolent,  and  do  real 
honor  to  the  humanity  and  justice  of  Congress;  and  as  the  Judges  desire  to 
manifest,  on  all  proper  occasions,  and  in  every  proper  maimer,  their  high 
respect  for  the  National  Legislature,  they  will  execute  this  act  in  the  capacity 
of  commissioners."  .  .  . 

The  Circuit  court  for  the  district  of  Pennsylvania  (consisting  of  Wilson 
and  Blaik,  Justices,  and  Peters,  District  Judge)  made  the  following  repre- 
sentation, in  a  letter  jointly  addressed  to  the  President  of  the  United  States, 
onthelSthof  April,  1792. 

"  To  you  it  officially  belongs  to  '  take  care  that  the  laws '  of  the  United 
States  '  be  faithfully  executed.'     Before  you,  therefore,  we  think  it  our  duty 


'  A  short  statement  has  been  substituted  for  the  one  in  the  original  report. 
—  Ed. 


24  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

Madison,  Secretary  of  State,  to  show  cause  why  a  mandamus 
should  not  issue  commanding  him  to  cause  to  be  delivered  a 

to  lay  the  sentiments,  which,  on  a  late  painful  occasion,  governed  us  with 
regard  to  an  act  passed  by  the  legislature  of  the  union. 

"  The  people  of  the  United  States  have  vested  in  Congress  all  legislative 
powers  *  granted  in  the  constitution.' 

"  They  have  vested  in  one  Supreme  court,  and  in  such  inferior  courts  as  the 
Congress  shall  estabhsh,  '  the  judicial  power  of  the  United  States.' 

"  It  is  worthy  of  remark,  that  in  Congress,  the  whole  legislative  power  of 
the  United  States  is  not  vested.  An  important  part  of  that  power  was  exer- 
cised by  the  people  themselves,  when  they  '  ordained  and  estabUshed  the 
Constitution.' 

"This  Constitution  is  'the  Supreme  Law  of  the  Land.'  This  supreme 
law  '  all  judicial  officers  of  the  United  States  are  bound,  by  oath  or  affirmation, 
to  support.' 

"It  is  a  principle  important  to  freedom,  that  in  government,  the  judicial 
should  be  distinct  from,  and  independent  of,  the  legislative  department.  To 
this  important  principle  the  people  of  the  United  States,  in  forming  their 
Constitution,  have  manifested  the  highest  regard. 

"  They  have  placed  their  judicial  power  not  in  Congress,  but  in  '  courts.' 
They  have  ordained  that  the  '  Judges  of  those  courts  shall  hold  their  offices 
during  good  behaviour,'  and  that  '  during  their  continuance  in  office,  their 
salaries  shall  not  be  diminished.' 

"Congress  have  lately  passed  an  act,  to  regulate,  among  other  things, 
'  the  claims  to  invahd  pensions.' 

"  Upon  due  consideration,  we  have  been  unanimously  of  opinion,  that, 
under  this  act,  the  Circuit  court  held  for  the  Pennsylvania  district  could  not 
proceed; 

"  1st.  Because  the  business  directed  by  this  act  is  not  of  a  judicial  nature. 
It  forms  no  part  of  the  power  vested  by  the  Constitution  in  the  courts  of  the 
United  States;  the  Circuit  court  must,  consequently,  have  proceeded  without 
constitutional  authority. 

"  2d.  Because,  if,  upon  that  business,  the  court  had  proceeded,  its  judg- 
ments (for  its  opinions  are  its  judgments)  might,  under  the  same  act,  have 
been  revised  and  controuled  by  the  legislature,  and  by  an  officer  in  the  execu- 
tive department.  Such  revision  and  controul  we  deemed  radically  inconsis- 
tent with  the  independence  of  that  judicial  power  which  is  vested  in  the  courts; 
and,  consequently,  with  that  important  principle  which  is  so  strictly  observed 
by  the  Constitution  of  the  United  States. 

"  These,  Sir,  are  the  reasons  of  our  conduct.  Be  assured  that,  though  it 
became  necessary,  it  was  far  from  being  pleasant.  To  be  obhged  to  act  con- 
trary, either  to  the  obvious  directions  of  Congress,  or  to  a  constitutional 
principle,  in  our  judgment  equally  obvious,  excited  feeUngs  in  us,  which  we 
hope  never  to  experience  again." 

The  Circuit  court  for  the  district  of  North  Carolina  (consisting  of  Iredell, 
Justice,  and  Sitgreaves,  District  Judge)  made  the  following  representation 
in  a  letter  jointly  addressed  to  the  President  of  the  United  States,  on  the  8th 
of  June,  1792:— 


MARBURY   V.    MADISO^J.  25 

commission  as  justice  of  the  peace  of  the  District  of  Columbia. 
There  were  affidavits  tending  to  show  among  other  things  that 

"  We,  the  judges  now  attending  at  the  Circuit  court  of  the  United  States 
for  the  district  of  North  Carohna,  conceive  it  our  duty  to  lay  before  you  some 
important  observations  which  have  occurred  to  us  in  the  consideration  of  an 
act  of  Congress  lately  passed,  entitled  '  an  act  to  provide  for  the  settlement 
of  the  claims  of  widows  and  orphans  barred  by  the  limitations  heretofore 
established,  and  to  regulate  the  claims  to  invalid  pensions.' 

"  We  beg  leave  to  premise,  that  it  is  as  much  our  inclination,  as  it  is  our 
duty,  to  receive  with  all  possible  respect,  every  act  of  the  Legislature,  and 
that  we  never  can  find  ourselves  in  a  more  painful  situation  than  to  be  obliged 
to  object  to  the  execution  of  any,  more  especially  to  the  execution  of  one 
founded  on  the  purest  principles  of  humanity  and  justice,  which  the  act  in 
question  undoubtedly  is.  But,  however  lamentable  a  difference  in  opinion 
really  maj'^  be,  or  with  whatever  difficulty  we  may  have  formed  an  opinion, 
we  are  under  the  indispensable  necessity-  of  acting  according  to  the  best  dictates 
of  our  own  judgment,  after  duly  weighing  every  consideration  that  can  occur 
to  us;  which  we  have  done  on  the  present  occasion. 

"  The  extreme  importance  of  the  case,  and  our  desire  of  being  explicit 
beyond  the  danger  of  being  misunderstood,  will,  we  hope,  ju.stify  us  in  stating 
our  observations  in  a  sj'stemutic  manner.  We  therefore,  Sir,  submit  to  j'^ou 
the  following:  — 

"  1.  That  the  Legislative,  Executive,  and  Judicial  departments  are  each 
formed  in  a  separate  and  independent  manner;  and  that  the  ultimate  basis 
of  each  is  the  Constitution  only,  within  the  limits  of  which  each  department 
can  alone  justify  any  act  of  authority. 

"  2.  That  the  Legislature,  among  other  important  powers,  unquestionably 
possess  that  of  establishing  courts  in  such  a  manner  as  to  their  wisdom  shall 
appear  best,  limited  by  the  terms  of  the  constitution  only;  and  to  whatever 
extent  that  power  may  be  exerci.sed,  or  however  severe  the  duty  they  may 
think  proper  to  require,  the  Judges,  when  appointed  in  virtue  of  any  such 
establishment,  owe  implicit  and  unreser\'ed  obedience  to  it. 

"  3.  That  at  the  same  time  such  courts  cannot  be  warranted,  as  we  con- 
ceive, by  virtue  of  that  part  of  the  Constitution  delegating  Judicial  power, 
for  the  exercise  of  which  any  act  of  the  legislature  is  provided,  in  exercising 
(even  under  the  authority  of  another  act)  any  power  not  in  its  nature  judicial, 
or,  ii  judicial,  not  provided  for  upon  the  terms  the  Constitution  requires. 

"  4.  That  whatever  doubt  may  be  suggested,  whether  the  power  in  question 
is  properly  of  a  judicial  nature,  yet  inasmuch  as  the  decision  of  the  court  is 
not  made  final,  but  may  be  at  least  suspended  in  its  operation  by  the  Secretary 
at  War,  if  he  shall  have  cause  to  suspect  imposition  or  mistake;  this  subjects 
the  decision  of  the  court  to  a  mode  of  revision  which  we  consider  to  be  un- 
warranted by  the  Constitution;  for,  though  Congress  may  certainly  estabhsh, 
in  instances  not  yet  provided  for,  courts  of  appellate  jurisdiction,  yet  such 
courts  must  consist  of  judges  appointed  in  the  manner  the  Constitution 
requires,  and  holding  their  offices  by  no  other  tenure  than  that  of  their  good 
behaviour,  by  which  tenure  the  office  of  Secretary  at  War  is  not  held.  And 
we  beg  leave  to  add,  with  all  due  deference,  that  no  decision  of  any  court  of 
the  L'nited  States  can,  under  any  circumstances,  in  our  opinion,  agreeable  to 
the  Constitution,  be  liable  to  a  reversion,  or  even  suspension,  by  the  Legisla- 


26  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

John  Adams,  lately  President,  nominated  the  applicant  to  the 
Senate  for  advice  and  consent  to  be  appointed  such  justice  of  the 
peace,  that  the  Senate  advised  and  consented  to  the  appointment, 
that  a  commission  was  signed  by  such  President,  that  the  seal  of 
the  United  States  was  affixed  by  John  Marshall,  Secretary  of 

ture  itself,  in  whom  no  judicial  power  of  any  kind  appears  to  be  vested,  but  the 
important  one  relative  to  impeachments. 

"  These,  sir,  are  our  reasons  for  being  of  opinion,  as  we  are  at  present,  that 
this  Circuit  court  cannot  be  justified  in  the  execution  of  that  part  of  the  act, 
which  requires  it  to  examine  and  report  an  opinion  on  the  unfortunate  cases 
of  officers  and  soldiers  disabled  in  the  service  of  the  United  States.  .  .  . 

"  The  high  respect  we  entertain  for  the  Legislature,  our  feelings  as  men 
for  persons,  whose  situation  requires  the  earhest,  as  well  as  the  most  effectual 
relief,  and  our  sincere  desire  to  promote,  whether  officially  or  otherwise,  the 
just  and  benevolent  views  of  Congress,  so  conspicuous  on  the  present  as  well 
as  on  many  other  occasions,  have  induced  us  to  reflect,  whether  we  could  be 
justified  in  acting,  under  this  act,  personally  in  the  character  of  commissioners 
during  the  session  of  a  court;  and  could  we  be  satisfied  that  we  had  authority 
to  do  so,  we  would  cheerfully  devote  such  part  of  our  time  as  might  be  neces- 
sary for  the  performance  of  the  service.  But  we  confess  we  have  great  doubts 
on  this  head.  The  power  appears  to  be  given  to  the  court  only,  and  not  to 
the  Judges  of  it;  and  as  the  Secretary  at  War  has  not  a  discretion  in  all  instan- 
ces, but  only  in  those  where  he  has  cause  to  suspect  imposition  or  mistake, 
to  with-hold  a  person  recommended  by  the  court  from  being  named  on  the 
pension  list,  it  would  be  necessary  for  us  to  be  well  persuaded  we  possessed 
such  an  authority,  before  we  exercised  a  power,  which  might  be  a  means  of 
drawing  money  out  of  the  public  treasury  as  effectually  as  an  express  appro- 
priation by  law.  We  do  not  mean,  however,  to  preclude  ourselves  from  a  very 
deliberate  consideration,  whether  we  can  be  warranted  in  executing  the 
purposes  of  the  act  in  that  manner,  in  case  an  apphcation  should  be  made. 

"  No  apphcation  has  yet  been  made  to  the  court,  or  to  ourselves  individu- 
ally, and  therefore  we  have  had  some  doubts  as  to  the  propriety  of  giving  an 
opinion  in  a  case  which  has  not  yet  come  regularly  and  judicially  before  us. 
None  can  be  more  sensible  than  we  are  of  the  necessity  of  judges  being  in 
general  extremely  cautious  in  not  intimating  an  opinion  in  any  case  extra- 
judicially, because  we  well  know  how  hable  the  best  minds  are,  notwithstand- 
ing their  utmost  care,  to  a  bias,  which  may  arise  from  a  pre-conceived  opinion, 
even  unguardedly,  much  more  deliberately,  given:  But  in  the  present  instance, 
as  many  unfortunate  and  meritorious  individuals,  whom  Congress  have 
justly  thought  proper  objects  of  immediate  relief,  may  suffer  great  distress 
even  by  a  short  delay,  and  may  be  utterly  ruined  by  a  long  one,  we  determined 
at  all  events  to  make  our  sentiments  known  as  early  as  possible,  considering 
this  as  a  case  which  must  be  deemed  an  exception  to  the  general  rule,  upon 
every  principle  of  humanity  and  justice;  resolving  however,  that  so  far  as 
we  are  concerned  individually,  in  case  an  application  should  be  made,  we  will 
most  attentively  hear  it;  and  if  we  can  be  convinced  this  opinion  is  a  wrong 
one,  we  shall  not  hesitate  to  act  accordingly.  .  .  ."  —  Rep. 
[  See  United  States  v.  Yale  Todd,  13  How.  52,  note  (1794) ;  and  United  States 
V.  Ferreira,  13  How.  40,  49-51  (1851).  — Ed. 


MARBUKY   V.    MADISON.  27 

State,  that  the  applicant  requested  James  Madison,  Secretary  of 
State,  to  deliver  the  conunission,  that  Mr.  Madison  did  not  comply, 
and  that  Mr.  Madison  had  notice  of  this  motion.  A  rule  was 
granted  to  show  cause  the  fourth  day  of  next  term. 

At  such  next  term,  being  February  term,  1803,  no  cause  having 
been  shown,  there  was  a  motion  for  a  mandamus.  After  affidavits 
and  oral  testimony,  with  argument  in  behalf  of  the  applicant  by 
Charles  Lee,  the  opinion  of  the  court  was  delivered  on  February 
24,  1803,  by 

Marshall,  C.  J.  .  .  .  In  the  order  in  which  the  court  has 
viewed  this  subject,  the  following  questions  have  been  considered 
and  decided:  1st.  Has  the  applicant  a  right  to  the  commission 
he  demands  ?  2d.  If  he  has  a  right,  and  that  right  has  been 
violated,  do  the  laws  of  his  country  afford  him  a  remedy  ?  3d. 
If  they  do  afford  him  a  remedy,  is  it  a  mandamus  issuing  from 
this  court  ?  .  .  . 

This,  then,  is  a  plain  case  for  a  mandamus,  either  to  deliver  the 
commission,  or  a  copy  of  it  from  the  record;  and  it  only  remains 
to  be  inquired, 

"Whether  it  can  issue  from  this  court. 

The  act  to  establish  the  judicial  courts  of  the  United  States 
authorizes  the  supreme  court  "  to  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States." 

The  secretary  of  state,  being  a  person  holding  an  office  under 
the  authority  of  the  United  States,  is  precisely  within  the  letter 
of  the  description;  and  if  this  court  is  not  authorized  to  issue  a 
WTit  of  ryiandainus  to  such  an  officer,  it  must  be  because  the  law 
is  unconstitutional,  and  therefore  absolutely  incapable  of  conferring 
the  authority,  and  assigning  the  duties  which  its  words  purport 
to  confer  and  assign. 

The  constitution  vests  the  whole  judicial  power  of  the  United 
States  in  one  supreme  court,  and  such  inferior  courts  as  congress 
shall,  from  time  to  time,  ordain  and  establish.  This  power  is 
expressly  extended  to  all  cases  arising  under  the  laws  of  the  United 
States;  and  consequently,  in  some  form,  may  be  exercised  over 
the  present  case;  because  the  right  claimed  is  given  by  a  law  of 
the  United  States. 

In  the  distribution  of  this  power  it  is  declared  that  the  supreme 
court  shall  have  original  jurisdiction  in  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls,  and  those  in  which  a 


28  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

state  shall  be  a  party.    In  all  other  cases,  the  supreme  court  shall 
have  appellate  jurisdiction. 

It  has  been  insisted,  at  the  bar,  that  as  the  original  grant  of 
jurisdiction,  to  the  supreme  and  inferior  courts,  is  general,  and 
the  clause,  assigning  original  jurisdiction  to  the  supreme  court, 
contains  no  negative  or  restrictive  words;  the  power  remains  to 
the  legislature,  to  assign  original  jurisdiction  to  that  court  in  other 
cases  than  those  specified  in  the  article  which  has  been  recited; 
provided  those  cases  belong  to  the  judicial  power  of  the  United 
States. 

If  it  had  been  intended  to  leave  it  in  the  discretion  of  the  legis- 
lature to  apportion  the  judicial  power  between  the  su]:)rome  and 
inferior  courts  according  to  the  will  of  that  body,  it  would  certainly 
have  been  useless  to  have  proceeded  further  than  to  have  defined 
the  judicial  power,  and  the  tribunals  in  which  it  should  be  vested. 
The  subsequent  part  of  the  section  is  mere  surplussage,  is  entirely 
without  meaning,  if  such  is  to  be  the  construction.  If  congress 
remains  at  liberty  to  give  this  court  appellate  jurisdiction,  where 
the  constitution  has  declared  their  jurisdiction  shall  be  original; 
and  original  jurisdiction  where  the  constitution  has  declared  it 
shall  be  appellate;  the  distribution  of  jurisdiction,  made  in  the 
constitution,  is  form  without  substance. 

Affirmative  words  are  often,  in  their  operation,  negative  of  other 
objects  than  those  affirmed;  and  in  this  case,  a  negative  or  ex- 
clusive sense  must  be  given  to  them  or  they  have  no  operation  at 
all. 

It  cannot  be  presumed  that  any  clause  in  the  constitution  is 
intended  to  be  without  effect;  and  therefore  such  a  construction 
is  inadmissible,  unless  the  words  require  it. 

If  the  solicitude  of  the  convention,  respecting  our  peace  with 
foreign  powers,  induced  a  provision  that  the  supreme  court  should 
take  original  jurisdiction  in  cases  which  might  be  supposed  to 
affect  them;  yet  the  clause  would  have  proceeded  no  further  than 
to  provide  for  such  cases,  if  no  further  restriction  on  the  powers 
of  congress  had  been  intended.  That  they  should  have  appellate 
jurisdiction  in  all  other  cases,  with  such  exceptions  as  congress 
might  make,  is  no  restriction;  unless  the  words  be  deemed  exclu- 
sive of  original  jurisdiction. 

When  an  instrument  organizing  fundamentally  a  judicial 
system,  divides  it  into  one  supreme,  and  so  many  inferior  courts 
as  the  legislature  may  ordain  and  establish;  then  enumerates  its 
powers,  and  proceeds  so  far  to  distribute  them,  as  to  define  the 


MARBURY   V.    MADISON.  29 

jurisdiction  of  the  supreme  court  by  declaring  the  cases  in  which 
it  shall  take  original  jurisdiction,  and  that  in  others  it  shall  take 
appellate  jurisdiction;  the  plain  import  of  the  words  seems  to  be, 
that  in  one  class  of  cases  its  jurisdiction  is  original,  and  not  appel- 
late;' in  the  other  it  is  appellate,  and  not  original.  If  any  other 
construction  would  render  the  clause  inoperative,  that  is  an 
additional  reason  for  rejecting  such  other  construction,  and  for 
adhering  to  their  obvious  meaning. 

To  enable  this  court  then  to  issue  a  mandamus,  it  must  be  shown 
to  be  an  exercise  of  appellate  jurisdiction,  or  to  be  necessary  to 
enable  them  to  exercise  appellate  jurisdiction. 

It  has  been  stated  at  the  bar  that  the  appellate  jurisdiction 
may  be  exercised  in  a  variety  of  forms,  and  that  if  it  be  the  will 
of  the  legislature  that  a  mandamus  should  be  used  for  that  purpose, 
that  will  must  be  obeyed.  This  is  true,  yet  the  jurisdiction  must 
be  appellate,  not  original. 

It  is  the  essential  criterion  of  appellate  jurisdiction,  that  it 
revises  and  corrects  the  proceedings  in  a  cause  already  instituted, 
and  does  not  create  that  cause.  Although,  therefore,  a  mandamus 
may  be  directed  to  courts,  yet  to  issue  such  a  writ  to  an  officer 
for  the  delivery  of  a  paper,  is  in  effect  the  same  as  to  sustain  an 
original  action  for  that  paper,  and  therefore  seems  not  to  belong 
to  appellate,  but  to  original  jurisdiction.  Neither  is  it  necessary 
in  such  a  case  as  this,  to  enable  the  court  to  exercise  its  appellate 
jurisdiction. 

The  authority,  therefore,  given  to  the  supreme  court,  by  the 
act  estabUshing  the  judicial  courts  of  the  United  States,  to  issue 
WTits  of  mandamus  to  public  officers,  appears  not  to  be  warranted 
by  the  constitution;  and  it  becomes  necessary  to  inquire  whether 
a  jurisdiction,  so  conferred,  can  be  exercised. 

The  question,  whether  an  act,  repugnant  to  the  constitution, 
can  become  the  law  of  the  land,  is  a  question  deeply  interesting 
to  the  United  States;  but,  happily,  not  of  an  intricacy  proportioned 
to  its  interest.  It  seems  only  necessary  to  recognize  certain 
principles,  supposed  to  have  been  long  and  well  established,  to 
decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles,  as,  in  their  opinion,  shall 
most  conduce  to  their  own  happiness  is  the  basis,  on  which  the 
whole  American  fabric  has  been  erected.  The  exercise  of  this 
original  right  is  a  very  great  exertion;  nor  can  it  nor  ought  it  to 
be  frequently  repeated.     The  prmciples,  therefore,  so  estabhshed, 


30  LEGISLATIVE,   EXECUTIVE,   AND  JUDICIAL   POWERS. 

are  deemed  fundamental.  And  as  the  authority  from  which  they 
proceed  is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent. 

This  original  and  supreme  will  organizes  the  government,  and 
assigns,  to  different  departments,  their  respective  powers.  It 
may  either  stop  here,  or  establish  certain  limits  not  to  be  tran- 
scended by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined,  and  limited;  and  that 
those  limits  may  not  be  mistaken,  or  forgotten,  the  constitution 
is  written.  To  what  purpose  are  powers  limited,  and  to  what 
purpose  is  that  limitation  committed  to  writing,  if  these  limits 
may,  at  any  time,  be  passed  by  those  intended  to  be  restrained  ? 
The  distinction,  between  a  government  with  limited  and  unlimited 
powers,  is  abolished,  if  those  limits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  prohibited  and  acts  allowed 
are  of  equal  obligation.  It  is  a  proposition  too  plain  to  be  con- 
tested, that  the  constitution  controls  any  legislative  act  repugnant 
to  it;  or,  that  the  legislature  may  alter  the  constitution  by  an 
ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
constitution  is  either  a  superior,  paramount  law,  unchangeable 
by  ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative  acts, 
and  like  other  acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  constitution  is  not  law:  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on  the  part 
of  the  people,  to  limit  a  power,  in  its  oa\'ti  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions 
contemplate  them  as  forming  the  fundamental  and  paramount 
law  of  the  nation,  and  consequently  the  theory  of  every  such 
government  must  be,  that  an  act  of  the  legislature^  repugnant 
to  the  constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution, 
and  is  consequently  to  be  considered,  by  this  court,  as  one  of  the 
fundamental  principles  of  our  society.  It  is  not  therefore  to  be 
lost  sight  of  in  the  future  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution,  is 
void,  does  it,  notwdthstanding  its  invalidity,  bind  the  courts,  and 
oblige  them  to  give  it  effect  ?  Or,  in  other  words,  though  it  be 
not  law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law  ? 


MARBURY   V.    MADISON.  31 

This  would  be  to  overthrow  in  fact  what  was  estabhshed  in  theory; 
and  would  seem,,  at  first  view,  an  absurdity  too  gross  to  be  insisted 
on.     It  shall,  however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule  to  par- 
ticular cases  must  of  necessity  expound  and  interpret  that  rule. 
If  two  laws  conflict  Math  each  other,  the  courts  must  decide  on  the 
operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both  the  law 
and  the  constitution  apply  to  a  particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  constitution;  or  conformably  to  the  constitution,  disregarding 
the  law;  the  court  must  determine  which  of  these  conflicting 
rules  governs  the  case.  This  is  of  the  very  essence  of  judicial 
duty. 

If  then  the  courts  are  to  regard  the  constitution;  and  the  con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature;  the 
constitution,  and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply. 

Those  then  who  controvert  the  principle  that  the  constitution 
is  to  be  considered,  in  court,  as  a  paramount  law,  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their  eyes  on 
the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act,  which,  according  to 
the  principles  and  theory  of  our  government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare,  that 
if  the  legislature  shall  do  what  is  expressly  forbidden,  such  act, 
notwithstanding  the  express  prohibition,  is  in  reality  effectual. 
It  would  be  gi\'ing  to  the  legislature  a  practical  and  real  omnipo- 
tence, with  the  same  breath  which  professes  to  restrict  their  powers 
within  narrow  limits.  It  is  prescribing  limits,  and  declaring  that 
those  limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the 
greatest  improvement  on  political  institutions  —  a  written  con- 
stitution —  would  of  itself  be  sufficient,  in  America,  where  WTitten 
constitutions  have  been  viewed  with  so  much  reverence,  for 
rejecting  the  construction.  But  the  peculiar  expressions  of  the 
constitution  of  the  United  States  furnish  additional  arguments 
in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  constitution. 


32  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say- 
that,  in  using  it,  the  constitution  should  not  be  looked  into  ?  That 
a  case  arising  under  the  constitution  should  be  decided  without 
examining  the  instrument  under  which  it  arises  ? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases  then,  the  constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are  they 
forbidden  to  read,  or  to  obey  ? 

There  are  many  other  parts  of  the  constitution  which  serve  to 
illustrate  this  subject. 

It  is  declared  that  "  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  state. ' '  Suppose  a  duty  on  the  export  of  cotton, 
of  tobacco,  or  of  flour;  and  a  suit  instituted  to  recover  it.  Ought 
judgment  to  be  rendered  in  such  a  case  ?  ought  the  judges  to  close 
their  eyes  on  the  constitution,  and  only  see  the  law? 

The  constitution  declares  that  "  no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed  and  a  person  should 
be  prosecuted  under  it;  must  the  court  condemn  to  death  those 
victims  whom  the  constitution  endeavors  to  preserve  ? 

"  No  person,"  says  the  constitution,  "  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court." 

Here  the  language  of  the  constitution  is  addressed  especially 
to  the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence 
not  to  be  departed  from.  If  the  legislature  should  change  that 
rule,  and  declare  one  witness,  or  a  confession  out  of  court,  sufficient 
for  conviction,  must  the  constitutional  principle  yield  to  the 
legislative  act  ? 

From  these,  and  many  other  selections  which  might  be  made, 
it  is  apparent  that  the  framers  of  the  constitution  contemplated 
that  instrument  as  a  rule  for  the  government  of  courts,  as  well 
as  of  the  legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to 
support  it  ?  This  oath  certainly  applies,  in  an  especial  manner, 
to  their  conduct  in  their  official  character.  How  immoral  to 
impose  it  on  them,  if  they  were  to  be  used  as  the  instruments, 
and  the  knowing  instruments,  for  violating  what  they  swear  to 
support  ? 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words,  "I  do  solemnly  swear  that  I  will  administer  justice 


MARTIN   V.    MOTT.  33 

without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to 
the  rich;  and  that  I  will  faithfully  and  impartially  discharge  all 
the  duties  incumbent  on  me  as  according  to  the 

best  of  my  abilities  and  understanding,  agreeably  to  the  constitu- 
tion, and  laws  of  the  United  States." 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to 
the  constitution  of  the  United  States,  if  that  constitution  forms 
no  rule  for  his  government  ?  if  it  is  closed  upon  him,  and  cannot 
be  inspected  by  him  ? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally  a 
crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  constitution  itself 
is  first  mentioned;  and  not  the  laws  of  the  United  States  generally, 
but  those  only  which  shall  be  made  in  pursuance  of  the  constitu- 
tion, have  that  rank. 

Thus,  the  particular  phraseology^  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 
to  be  essential  to  all  written  constitutions,  that  a  law  repugnant 
to  the  constitution  is  void;  and  that  courts,  as  well  as  other  de- 
partments, are  bound  })y  that  instrument. 

The  rule  must  be  discharged. 


MARTIX,  Plaintiff  in  Error,  i\  :\IOTT, 
Defendant  in  Error. 

Supreme  Court  of  the  United  States.     1827. 

[12  Whealon,  19.] 

Error  to  the  Court  for  the  Trial  of  Impeachments  and  Correc- 
tion of  Errors  of  the  State  of  New  York.  .  .  . 

The  Attorney  General  (Wirt)  and  Coxe,  for  plaintiff  in  error. 
D.  B.  Ogden,  contra. 

Story,  J.,  deUvered  the  opinion  of  the  court.  —  This  is  a  writ 
of  error  to  the  judgment  of  the  Court  for  the  Trial  of  Impeach- 
ments and  the  Correction  of  Errors  of  the  State  of  New  York, 


34  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

being  the  highest  Court  of  that  State,  and  is  brought  here  in  virtue 
of  the  25th  section  of  the  Judiciary  Act  of  1789,  ch.  20.  The 
original  action  was  a  replevin  for  certain  goods  and  chattels,  to 
which  the  original  defendant  put  in  an  avowry,  and  to  that  avowry 
there  was  a  demurrer,  assigning  nineteen  distinct  and  special 
causes  of  demurrer.  Upon  a  joinder  in  demurrer,  the  Supreme 
Court  of  the  State  gave  judgment  against  the  avowant;  and  that 
judgment  was  affirmed  by  the  high  Court  to  which  the  present 
WTit  of  error  is  addressed. 

The  avowry,  in  substance,  asserts  a  justification  of  the  taking 
of  the  goods  and  chattels  to  satisfy  a  fine  and  forfeiture  imposed 
upon  the  original  plaintiff  by  a  Court  Martial,  for  a  failure  to 
enter  the  service  of  the  United  States  as  a  militia-man,  when 
thereto  required  by  the  President  of  the  United  States,  in  pur- 
suance of  the  act  of  the  28th  of  February,  1795,  c.  101.  It  is 
argued  that  this  avowry  is  defective,  both  in  substance  and  form; 
and  it  will  be  our  business  to  discuss  the  most  material  of  these 
objections;  and  as  to  others,  of  which  no  particular  notice  is  taken, 
it  is  to  be  understood  that  the  Court  are  of  opinion,  that  they 
are  either  unfounded  in  fact  or  in  law,  and  do  not  require  any 
separate  examination. 

For  the  more  clear  and  exact  consideration  of  the  subject,  it 
may  be  necessary  to  refer  to  the  constitution  of  the  United  States, 
and  some  of  the  provisions  of  the  act  of  1795.  The  constitution 
declares  that  Congress  shall  have  power  "  to  provide  for  calling 
forth  the  militia,  to  execute  the  laws  of  the  Union,  suppress  in- 
surrections, and  repel  invasions":  and  also  "to  provide  for 
organizing,  arming,  and  disciplining  the  militia,  and  for  governing 
such  part  of  them  as  may  be  employed  in  the  service  of  the  United 
States."  In  pursuance  of  this  authority,  the  act  of  1795  has 
provided,  "  that  whenever  the  United  States  shall  be  invaded,  or 
be  in  imminent  danger  of  invasion  from  any  foreign  nation  or 
Indian  tribe,  it  shall  be  lawful  for  the  President  of  the  United 
States  to  call  forth  such  number  of  the  militia  of  the  State  or 
States  most  convenient  to  the  place  of  danger,  or  scene  of  action, 
as  he  may  judge  necessary  to  repel  such  invasion,  and  to  issue  his 
order  for  that  purpose  to  such  officer  or  officers  of  the  militia  as 
he  shall  think  proper."  And  like  provisions  are  made  for  the 
other  cases  stated  in  the  constitution.  It  has  not  been  denied 
here,  that  the  act  of  1795  is  within  the  constitutional  authority 
of  Congress,  or  that  Congress  may  not  lawfully  provide  for  cases 
of  imminent  danger  of  invasion,  as  well  as  for  cases  where  an 


MARTIN   V.    MOTT.  35 

invasion  has  actually  taken  place.  In  our  opinion  there  is  no 
ground  for  a  (loul)t  on  this  point,  even  if  it  had  been  relied  on,  for 
the  power  to  provide  for  repelling  invasions  includes  the  power 
to  provide  against  the  attempt  and  danger  of  invasion,  as  the 
necessary  and  proper  means  to  effectuate  the  object.  One  of  the 
best  means  to  repel  invasion  is  to  provide  the  requisite  force  for 
action  before  the  invader  himself  has  reached  the  soil. 

The  power  thus  confided  by  Congress  to  the  President,  is, 
doubtless,  of  a  very  high  and  delicate  nature.     A  free  people  are 
naturally  jealous  of  the  exercise  of    military  power;    and    the 
power  to  call  the  militia  into  actual  service  is  certainly  felt  to  be 
one  of  no  ordinary  magnitude.     But  it  is  not  a  power  which  can 
be  executed  without  a  correspondent  responsibility.     It  is,  in  its 
terms,  a  limited  power,  confined  to  cases  of  actual  invasion,  or  of 
imminent  danger  of  invasion.     If   it   be   a   limited  power,  the 
question  arises,  by  whom  is  the  exigency  to  be  judged  of  and 
decided  ?     Is  the  President  the  sole  and  exclusive  judge  whether 
the  exigency  has  arisen,  or  is  it  to  be  considered  as  an  open  ques- 
tion, upon  which  every  officer  to  whom  the  orders  of  the  President 
are  addressed,  may  decide  for  himself,  and  equally  open  to  be 
contested  by  every  militia-man  who  shall  refuse  to  obey  the  orders 
of  the  President  ?     We  are  all  of  opinion,  that  the  authority  to 
decide  whether  the  exigency  has  arisen   belongs  exclusively  to 
the  President,  and  that  his  decision  is  conclusive  upon  all  other 
per.sons.      We   think   that  this   construction    necessarily  results 
from  the  nature  of  the  power  itself,  and  from  the  manifest  object 
contemplated  by  the  act  of  Congress.     The  power  itself  is  to  be 
exercised  upon  sudden  emergencies,  upon  great  occasions  of  state, 
and  under  circumstances  which  may  be  vital  to  the  existence  of 
the  Union.     A  prompt  and  unhesitating  obedience  to  orders  is 
indispensal)le  to  the  complete  attainment  of   the  object.     The 
service  is  a  military  service,  and  the  command  of  a  military  nature; 
and  in  such  cases,  every  delay,  and  every  obstacle  to  an  efficient 
and  immediate  compliance,  necessarily  tend  to  jeopard  the  public 
interests.     While  subordinate  officers  or  soldiers  are  pausing  to 
consider  whether  they  ought  to  obey,  or  are  scrupulously  weighing 
the  evidence  of  the  facts  upon  which   the   commander-in-chief 
exercises  the  right  to  demand  their  services,  the  hostile  enterprise 
may  be  accomplished  without  the  means  of  resistance.     If  "  the 
power  of  regulating  the  militia,  and  of  commanding  its  services 
in  times  of  insurrection  and  invasion,  are  (as  it  has  been  emphati- 
cally said  they  are)  natural  incidents  to  the  duties  of  superintending 


3G  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

the  common  defence,  and  of  watching  over  the  int(Tnal  peace  of 
the  confederacy,"  these  powers  must  be  so  construed  as  to  the 
modes  of  their  exercise  as  not  to  defeat  the  great  end  in  view.  If 
a  superior  officer  has  a  right  to  contest  the  orders  of  the  President 
upon  his  own  doubts  as  to  the  exigency  having  arisen,  it  must  be 
equally  the  right  of  every  inferior  officer  and  soldier;  and  any  act 
done  by  any  person  in  furtherance  of  such  orders  would  subject 
him  to  responsibility  in  a  civil  suit,  in  which  his  defence  must 
finally  rest  upon  his  ability  to  establish  the  facts  by  competent 
proofs.  Such  a  course  would  be  subversive  of  all  discipline,  and 
expose  the  best  disposed  officers  to  the  chances  of  ruinous  litigation. 
Besides,  in  many  instances,  the  evidence  upon  which  the  Presi- 
dent might  decide  that  there  is  imminent  danger  of  invasion, 
might  be  of  a  nature  not  constituting  strict  technical  proof,  or 
the  disclosure  of  the  evidence  might  reveal  important  secrets  of 
state,  which  the  public  interest,  and  even  safety,  might  imperiously 
demand  to  be  kept  in  concealment.  .  .  . 

He  is  necessarily  constituted  the  judge  of  the  existence  of  the 
exigency  in  the  first  instance,  and  is  bound  to  act  according  to  his 
belief  of  the  facts.  If  he  does  so  act,  and  decides  to  call  forth  the 
militia,  his  orders  for  this  purpose  are  in  strict  conformity  with 
the  provisions  of  the  law;  and  it  would  seem  to  follow  as  a  neces- 
sary consequence,  that  every  act  done  by  a  subordinate  officer, 
in  obedience  to  such  orders,  is  equally  justifiable.  The  law  con- 
templates that,  under  such  circumstances,  orders  shall  be  given 
to  carry  the  power  into  effect;  and  it  cannot  therefore  be  a  correct 
inference  that  any  other  person  has  a  just  right  to  disobey  them. 
The  law  does  not  provide  for  any  appeal  from  the  judgment  of 
the  President,  or  for  any  right  in  subordinate  officers  to  review 
his  decision,  and  in  effect  defeat  it.  Whenever  a  statute  gives  a 
discretionary  power  to  any  person,  to  be  exercised  by  him  upon 
his  own  opinion  of  certain  facts,  it  is  a  sound  rule  of  construction 
that  the  statute  constitutes  him  the  sole  and  exclusive  judge  of 
the  existence  of  those  facts.  And,  in  the  present  case,  we  are  all 
of  opinion  that  such  is  the  true  construction  of  the  act  of  1795. 
It  is  no  answer  that  such  a  power  may  be  abused,  for  there  is  no 
power  which  is  not  susceptible  of  abuse.  The  remedy  for  this, 
as  well  as  for  all  other  official  misconduct,  if  it  should  occur,  is  to 
be  found  in  the  constitution  itself.  In  a  free  government,  the 
danger  must  be  remote,  since  in  addition  to  the  high  qualities 
which  the  Executive  must  be  presumed  to  possess,  of  public  virtue, 
and  honest  devotion  to  the  public  interests,  the  frequency  of 


SIARTIN    V.    MOTT.  37 

elections,  and  the  watchfulness  of  the  representatives  of  the  nation 
carry  with  them  all  the  checks  which  can  be  useful  to  guard  against 
usurpation  or  wanton  tyranny. 

This  doctrine  has  not  been  seriously  contested  upon  the  present 
occasion.  It  was  indeed  maintained  and  approved  by  the  Supreme 
Court  of  New  York,  in  the  case  of  Vanderheyden  v.  Young  (11 
Johns.  Rep.  150)  where  the  reasons  in  support  of  it  were  most 
ably  expounded  by  Mr.  Justice  Spencer,  in  delivering  the  opinion 
of  the  court. 

But  it  is  now  contended,  as  it  was  contended  in  that  case,  that 
notwithstanding  the  judgment  of  the  President  is  conclusive  as 
to  the  existence  of  the  exigency,  and  may  be  given  in  evidence 
as  conclusive  proof  thereof,  yet  that  the  avowTy  is  fatally  defective, 
because  it  omits  to  aver  that  the  fact  did  exist.  The  argument 
IS  that  the  power  confided  to  the  President  is  a  limited  power, 
and  can  be  exercised  only  in  the  cases  pointed  out  in  the  statute, 
and  therefore  it  is  necessary  to  aver  the  facts  which  bring  the 
exercise  within  the  purview  of  the  statute.  In  short,  the  same 
principles  are  sought  to  be  applied  to  the  delegation  and  exercise 
of  this  power  intrusted  to  the  Executive  of  the  nation  for  great 
political  purposes,  as  might  be  applied  to  the  humblest  officer  in 
the  government,  acting  upon  the  most  narrow  and  special  author- 
ity. It  is  the  opinion  of  the  Court,  that  this  objection  cannot 
be  maintained.  When  the  President  exercises  an  authority 
confided  to  him  by  law,  the  presumption  is,  that  it  is  exercised  in 
pursuance  of  law.  Every  public  officer  is  presumed  to  act  in 
obedience  to  his  duty,  until  the  contrary  is  shown;  and,  a  fortiori, 
this  presumption  ought  to  be  favorably  applied  to  the  chief  magis- 
trate of  the  Union.  It  is  not  necessary  to  aver  that  the  act  which 
he  may  rightfully  do  was  so  done.  If  the  fact  of  the  existence 
of  the  exigency  were  averred,  it  would  be  traversable,  and  of 
course  might  be  passed  upon  by  a  jury;  and  thus  the  legality  of 
the  orders  of  the  President  would  depend,  not  on  his  own  judg- 
ment of  the  facts,  but  upon  the  finding  of  those  facts  upon  the 
proofs  submitted  to  a  jury.  .  .  . 

The  next  objection  is  that  it  does  not  sufficiently  appear  in 
the  avowTy  that  the  Court  INIartial  was  a  lawfully  constituted 
Court  Martial,  having  jurisdiction  of  the  offence  at  the  time  of 
passing  its  sentence  against  the  original  plaintiff. 

Various  grounds  have  been  assigned  in  support  of  this  objec- 
tion. In  the  first  place,  it  is  said  that  the  original  plaintiff  was 
never  employed  in  the  service  of  the  United  States,  but  refused 


38  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

to  enter  that  service,  and  that,  consequently,  he  was  not  Hable 
to  the  rules  and  articles  of  war,  or  to  be  tried  for  the  offence  by 
any  Court  Martial  organized  under  the  authority  of  the  United 
States.  The  case  of  Houston  v.  Moore  (5  Wheat.  Rep.  1)  affords 
a  conclusive  answer  to  this  suggestion.  It  was  decided  in  that 
case,  that  although  a  militia-man,  who  refused  to  obey  the  orders 
of  the  President  calling  him  into  the  public  service,  was  not,  in 
the  sense  of  the  act  of  1795,  "  employed  in  the  service  of  the 
United  States  "  so  as  to  be  subject  to  the  rules  and  articles  of  war; 
yet  that  he  was  liable  to  be  tried  for  the  offence  under  the  5th 
section  of  the  same  act,  by  a  Court  Martial  called  under  the 
authority  of  the  United  States.  .  .  . 

Another  objection  to  the  proceedings  of  the  Court  Martial  is 
that  they  took  place,  and  the  sentence  was  given,  three  years 
and  more  after  the  war  was  concluded,  and  in  a  time  of  profound 
peace.  But  the  opinion  of  this  Court  is  that  a  Court  Martial, 
regularly  called  under  the  act  of  1795,  does  not  expire  with  the 
end  of  a  war  then  existing,  nor  is  its  jurisdiction  to  try  these 
offences  in  any  shape  dependent  upon  the  fact  of  war  or  peace. 
The  act  of  1795  is  not  confined  in  its  operation  to  cases  of  refusal 
to  obey  the  orders  of  the  President  in  times  of  public  war.  On 
the  contrary,  that  act  authorizes  the  President  to  call  forth  the 
militia  to  suppress  insurrections,  and  to  enforce  the  laws  of  the 
United  States,  in  times  of  peace.  .  .  . 

It  is  the  opinion  of  the  Court  that  the  judgment  of  the  Court  for 
the  trial  of  Impeachments  and  the  Correction  of  Errors  ought  to 
be  reversed;  and  that  the  cause  be  remanded  to  the  same  Court, 
with  directions  to  cause  a  judgment  to  be  entered  upon  the 
pleadings  in  favor  of  the  avowant. 


FOSTER  V.   NEILSON. 
Supreme  Court  of  the  United  States.     1829. 

[2  Peters,  253.] 

Error  to  the  District  Court  of  the  Eastern  District  of  Louisi- 
ana. .  .  . 

The  case  was  argued  by  Coxe  and  Webster,  for  the  plaintiffs  in 
error;  and  by  Jones,  for  the  defendant. 


FOSTER    V.    NEILSON.  39 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  suit  was  brought  by  the  plaintiffs  in  error  in  the  court  of 
the  United  States,  for  the  Eastern  District  of  Louisiana,  to  recover 
a  tract  of  land  lying  in  that  district,  about  thirty  miles  east  of  the 
Mississippi,  and  in  the  possession  of  the  defendant.  The  plaintiffs 
claimed  under  a  grant  for  40,000  arpents  of  land,  made  by  the 
Spanish  governor,  on  the  2d  of  January  1804,  to  Jayme  Joydra, 
and  ratified  by  the  king  of  Spain  on  the  29th  of  May,  1804.  The 
petition  and  order  of  survey  are  dated  in  September,  1803,  and 
the  return  of  the  survey  itself  was  made  on  the  27th  of  October 
in  the  same  year.  The  defendant  excepted  to  the  petition  of  the 
plaintiffs,  alleging  that  it  does  not  show  a  title  on  which  they 
can  recover;  that  the  territorv',  ^vithin  which  the  land  claimed 
is  situated,  had  been  ceded,  before  the  grant,  to  France,  and  by 
France  to  the  United  States;  and  that  the  grant  is  void,  being 
made  by  persons  who  had  no  authority'  to  make  it.  The  court 
sustained  the  exception,  and  dismissed  the  petition.  The  cause 
is  brought  before  this  court  by  a  writ  of  error. 

The  case  presents  this  very  intricate,  and  at  one  time  very 
interesting  question:  To  whom  did  the  country  between  the 
Iberville  and  the  Perdido  rightfully  belong,  when  the  title  now 
asserted  by  the  plaintiffs  was  acquired  ? 

This  question  has  been  repeatedly  discussed  with  great  talent 
and  research,  by  the  government  of  the  United  States  and  that 
of  Spain.  The  United  States  have  perseveringly  and  earnestly 
insisted,  that  by  the  treaty  of  St.  Ildefonso,  made  on  the  1st  of 
October  in  the  year  1800,  Spain  ceded  the  disputed  territory  as 
part  of  Louisiana  to  France;  and  that  France,  by  the  treaty  of 
Paris,  signed  on  the  30th  of  April,  1803,  and  ratified  on  the  21st 
of  October  in  the  same  year,  ceded  it  to  the  United  States.  Spain 
has  with  equal  perseverance  and  earnestness  maintained,  that 
her  cession  to  France  comprehended  that  territory  only  which 
was  at  that  time  denominated  Louisiana,  consisting  of  the  island 
of  New  Orleans,  and  the  country  she  received  from  France  west 
of  the  Mississippi.  ... 

In  a  controversy  between  two  nations  concerning  national 
boundary-,  it  is  scarcely  possible  that  the  courts  of  either  should 
refuse  to  abide  by  the  measures  adopted  by  its  own  government. 
There  being  no  common  tribunal  to  decide  between  them,  each 
determines  for  itself  on  its  own  rights,  and  if  they  cannot  adjust 
their  differences  peaceably,  the  right  remains  with  the  strongest. 
The  judiciar>'  is  not  that  department  of  the  government,  to  which 


40  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

the  assertion  of  its  interests  against  foreign  powers  is  confided; 
and  its  duty  commonly  is  to  decide  upon  individual  rights,  accord- 
ing to  those  principles  Avhich  the  political  departments  of  the 
nation  have  established.  If  the  course  of  the  nation  has  been 
a  plain  one,  its  courts  would  hesitate  to  pronounce  it  erroneous. 

We  think,  then,  however  individual  judges  might  construe  the 
treaty  of  St.  Ildefonso,  it  is  the  province  of  the  court  to  conform 
its  decisions  to  the  will  of  the  legislature,  if  that  will  has  been 
clearly  expressed. 

The  convulsed  state  of  European  Spain  affected  her  influence 
over  her  colonics;  and  a  degree  of  disorder  prevailed  in  the  Floridas 
at  which  the  United  States  could  not  look  wdth  indifference.  In 
October,  1810,  the  President  issued  his  proclamation,  directing 
the  governor  of  the  Orleans  territory  to  take  possession  of  the 
country  as  far  east  as  the  Perdido,  and  to  hold  it  for  the  United 
States.  This  measure  was  avowedly  intended  as  an  assertion  of 
the  title  of  the  United  States;  but  as  an  assertion  which  was 
rendered  necessary  in  order  to  avoid  evils  which  might  contravene 
the  wishes  of  both  parties,  and  which  would  still  leave  the  terri- 
tory "  a  subject  of  fair  and  friendly  negotiation  and  adjustment." 
In  April,  1812,  Congress  passed  "  an  act  to  enlarge  the  limits 
of  the  State  of  Louisiana."  This  act  describes  lines  which  com- 
prehend the  land  in  controversy,  and  declares  that  the  country 
included  within  them  shall  become  and  form  a  part  of  the  State  of 
Louisiana. 

In  May  of  the  same  year,  another  act  was  passed,  annexing 
the  residue  of  the  country  west  of  the  Perdido  to  the  Mississippi 
territory. 

And  in  February,  1813,  the  President  was  authorized  "  to 
occupy  and  hold  all  that  tract  of  country  called  West  Florida, 
which  lies  west  of  the  river  Perdido,  not  now  in  possession  of  the 
United  States." 

On  the  third  of  March,  1817,  Congress  erected  that  part  of 
Florida,  which  had  been  annexed  to  the  Mississippi  territory, 
into  a  separate  territory,  called  Alabama. 

The  powers  of  the  government  were  extended  to,  and  exercised 
in  those  parts  of  West  Florida  which  composed  a  part  of  Louisiana 
and  Mississippi,  respectively;  and  a  separate  government  was 
erected  in  Alabama.     U.  S.  L.  c.  4.  409. 

In  March  1819,  "  Congress  passed  an  act  to  enable  the  people 
of  Alabama  to  form  a  constitution  and  State  government."  And 
in  December  1819,  she  was  admitted  into  the  union,  and  declared 


FOSTER   V.    NEILSON.  41 

one  of  the  United  States  of  America.  The  treaty  of  amity,  settle- 
ment and  limits,  between  the  United  States  and  Spain,  was  signed 
at  Washington  on  the  22d  day  of  February,  1819,  but  was  not 
ratified  by  Spain  till  the  24th  day  of  October,  1820;  nor  by  the 
United  States,  until  the  22d  day  of  February  1821.  So  that 
Alabama  was  admitted  into  the  union  as  an  independent  State, 
in  virtue  of  the  title  acquired  by  the  United  States  to  her  territory 
under  the  treaty  of  April,  1803. 

After  these  acts  of  sovereign  power  over  the  territory  in  dispute, 
asserting  the  American  construction  of  the  treaty  by  which  the 
government  claims  it,  to  maintain  the  opposite  construction  in 
its  OAvn  courts  would  certainly  be  an  anomaly  in  the  history  and 
practice  of  nations.  If  those  departments  which  are  intrusted 
with  the  foreign  intercourse  of  the  nation,  which  assert  and  main- 
tain its  interests  against  foreign  powers,  have  unequivocally 
asserted  its  rights  of  dominion  over  a  country  of  which  it  is  in 
possession,  and  which  it  claims  under  a  treaty;  if  the  legislature 
has  acted  on  the  construction  thus  asserted,  it  is  not  in  its  own 
courts  that  this  construction  is  to  be  denied.  A  question  like 
this,  respecting  the  boundaries  of  nations,  is,  as  has  been  truly 
said,  more  a  political  than  a  legal  question;  and  in  its  discussion, 
the  courts  of  every  country  must  respect  the  pronounced  will  of 
the  legislature.  .  .  . 

We  are  of  opinion,  then,  that  the  court  committed  no  error  in 
dismissing  the  petition  of  the  plaintiff,  and  that  the  judgment 
ought  to  be  affirmed  "vvith  costs.  .  .  .  ^ 

»  In  Williams  v.  Suffolk  Ins.  Co.,  1.3  Pet.  415  (1839),  the  Cirruit  Court  for 
the  District  of  Massachusetts  having  certified  a  difference  of  opinion  on  the 
question  "  whether,  inasmuch  as  the  American  government  has  insisted,  and 
does  still  insist,  through  its  regular  executive  authority,  that  the  Falkland 
islands  do  not  constitute  any  part  of  the  dominions  within  the  sovereignty 
of  the  government  of  Buenos  Ayres,  and  that  the  seal  fishery  at  those  islands 
is  a  trade  free  and  lawful  to  the  citizens  of  the  United  States  .  .  .  ;  it  is  com- 
petent for  the  Circuit  Court,  in  this  cause,  to  inquire  into  and  ascertain  by 
other  evidence  the  title  of  said  government  of  Buenos  Ayres  to  the  sovereignty 
of  the  said  Falkland  islands;  and  if  such  evidence  satisfies  the  court,  to  decide 
against  the  doctrines  and  claims  set  up  and  supported  by  the  American  govern- 
ment on  this  subject." 

The  Supreme  Court  decided  that  it  was  impossible  to  go  behind  the  position 
taken  by  the  executive  authority;  and  McLean,  J.,  for  the  court  said:  — 

"  And  can  there  be  any  doubt,  that  when  the  executive  branch  of  the  govern- 
ment, which  is  charged  with  our  foreign  relations,  shall,  in  its  correspondence 
with  a  foreign  nation,  assume  a  pact  in  regard  to  the  sovereignty  of  any  island 
or  country,  it  is  conclusive  on  the  judicial  department  ?  And  in  this  view, 
it  is  not  material  to  inquire,  nor  is  it  the  province  of  the  court  to  determine, 


42  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

KENDALL,  Postmaster  General  of  the  United  States, 

Plaintiff  in  Error,  v.  UNITED  STATES,  on  the 

relation  of  Stokes  et  al. 

Supreme  Court  of  the  United  States.     1838. 

[12  Peters,  524.1 

Error  to  the  Circuit  Court  of  the  District  of  Columbia,  for  the 
County  of  Washington.  .  .  . 

Key  and  Butler,  A.  G.,  for  the  plaintiff  in  error.  Coxe  and 
Johnson,  contra. 

Thompson,  J.,  delivered  the  opinion  of  the  Court.  .  .  .  This 
case  was  brought  before  the  court  below,  by  petition,"  setting  out 
certain  contracts  made  between  the  relators  and  the  late  post- 
master general,  upon  which  they  claimed  certain  credits  and 
allowances  upon  their  contracts  for  the  transportation  of  the  mail. 
That  credits  and  allowances  were  duly  made  by  the  late  postmaster 
general.  That  the  present  postmaster  general  when  he  came  into 
office  re-examined  the  contracts  entered  into  with  his  predecessor, 
and  the  allowances  made  by  him,  and  the  credits  and  payments 
which  had  been  made;  and  directed  that  the  allowances  and 
credits  should  be  withdrawn,  and  the  relators  recharged  with 
divers  payments  they  had  received.  That  the  relators  presented 
a  memorial  to  congress  on  the  subject,  upon  which  a  law  was 
passed  on  the  21st  of  July,  1836,  for  their  relief;  by  which  the 
solicitor  of  the  treasury  was  authorized  and  directed  to  settle  and 
adjust  the  claims  of  the  relators  for  extra  services  performed  by 

whether  the  Executive  be  right  or  wrong.  It  is  enough  to  know,  that  in  the 
exercise  of  his  constitutional  functions,  he  has  decided  the  question.  Having 
done  this,  under  the  responsibilities  which  belong  to  him,  it  is  obligatory  on 
the  people  and  government  of  the  Union. 

"  If  this  were  not  the  rule,  cases  might  often  arise,  in  which,  on  the  most 
important  questions  of  foreign  jurisdiction,  there  would  be  an  irreconcilable 
difference  between  the  executive  and  judicial  departments.  By  one  of  these 
departments,  a  foreign  island  or  country  might  be  considered  as  at  peace  with 
the  United  States;  whilst  the  other  would  consider  it  in  a  state  of  war.  No 
well-regulated  government  has  ever  sanctioned  a  principle  so  unwise,  and  so 
destructive  of  national  character.  ...  As  the  Executive,  in  his  message,  and 
in  his  correspondence  with  the  government  of  Buenos  Ayres,  has  denied  the 
jiirisdiction  which  it  has  assumed  to  establish  on  the  Falkland  islands;  the  fact 
must  be  taken  and  voted  on  by  this  court  as  thus  asserted  and  maintained." 

See  also  PhiUips  v.  Payne,  92  U.  S.  130  (1875)  (Alexandria  County,  Vir- 
ginia); Jones  V.  United  States,  137  U.  S.  202  (1890)  (Guano  Islands);  Pearcy 
;'.  Stranahan,  205  U.  S.  257  (1907)  (Isle  of  Pines).  —  Ed. 


KENDALL   V.    UNITED    STATES.  43 

them;  to  inquire  into  and  determine  tlie  equity  of  such  claims; 
and  to  make  the  relators  such  allowance  therefor,  as  upon  full 
examination  of  all  the  evidence  may  seem  right,  according  to  the 
principles  of  equity.  And  that  the  postmaster  general  be,  and 
he  is  hereby  directed  to  credit  the  relators  with  whatever  sum  or 
sums  of  money,  if  any,  the  solicitor  shall  so  decide  to  be  due  to 
them,  for  and  on  account  of  any  such  service  or  contract. 
And  the  petition  prayed  the  court  to  award  a  mandamus  directed 
to  the  postmaster  general,  commanding  him  fully  to  comply  with, 
obey  and  execute  the  said  act  of  congress,  by  crediting  the  relators 
%\ith  the  full  and  entire  sum  awarded  in  their  favor  by  the  solic- 
itor of  the  treasury. 

Such  proceedings  were  afterwards  had  in  the  case,  that  a  peremp- 
tory mandamus  was  ordered  commanding  the  said  Amos  Kendall, 
postmaster  general,  forthwith  to  credit  the  relators  with  the  full 
amount  awarded  and  decided  by  the  solicitor  of  the  treasury  to  be 
due  to  the  relators. 

The  questions  arising  upon  this  case  may  be  considered  under 
two  general  inquiries:  — 

1.  Does  the  record  present  a  proper  case  for  a  mandamus;  and 
if  so,  then, 

2.  Had  the  circuit  court  of  this  district  jurisdiction  of  the  case, 
and  authority  to  issue  the  wnrit  ? 

Under  the  first  head  of  inquiry,  it  has  been  considered  by  the 
counsel  on  the  part  of  the  postmaster  general,  that  this  is  a  pro- 
ceeding against  him  to  enforce  the  performance  of  an  official  duty. 
And  the  proceeding  has  been  treated  a.s  an  infringement  upon 
the  executive  department  of  the  government;  which  has  led  to  a 
very  extended  range  of  argument  on  the  independence  and  duties 
of  that  department;  but  which,  according  to  the  view  taken  by 
the  court  of  the  case,  is  entirely  misapplied.  We  do  not  think 
the  proceeding  in  this  case,  interferes,  in  any  respect  whatever, 
with  the  rights  or  duties  of  the  executive;  or  that  it  involves  any 
conflict  of  powers  between  the  executive  and  judicial  departments 
of  the  government.  The  mandamus  does  not  seek  to  direct  or 
control  the  postmaster  general  in  the  discharge  of  any  official 
duty,  partaking  in  any  respect  of  an  executive  character;  but  to 
enforce  the  performance  of  a  mere  ministerial  act,  which  neither 
he  nor  the  President  had  any  authority  to  deny  or  control. 

We  shall  not,  therefore,  enter  into  any  particular  examination 
of  the  line  to  be  drawn  between  the  powers  of  the  executive  and 
judicial   departments   of   the   government.     The   theory  of   the 


44  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

constitution  undoubtedly  is,  that  the  great  powers  of  the  govern- 
ment are  divided  into  separate  departments;  and  so  far  as  these 
powers  are  derived  from  the  constitution,  the  departments  may 
be  regarded  as  independent  of  each  other.  But  bej'ond  that,  all 
are  subject  to  regulations  by  law,  touching  the  discharge  of  the 
duties  required  to  be  performed. 

The  executive  power  is  vested  in  a  President;  and  as  far  as  his 
powers  are  derived  from  the  constitution,  he  is  beyond  the  reach 
of  any  other  department,  except  in  the  mode  prescribed  by  the 
constitution  through  the  impeaching  power.  But  it  by  no  means 
follows,  that  every  officer  in  every  branch  of  that  department  is 
under  the  exclusive  direction  of  the  President.  Such  a  principle, 
we  apprehend,  is  not,  and  certainly  cannot  be  claimed  by  the 
President. 

There  are  certain  political  duties  imposed  upon  many  officers  in 
the  executive  department,  the  discharge  of  which  is  under  the 
direction  of  the  President.  But  it  would  be  an  alarming  doctrine, 
that  congress  cannot  impose  upon  any  executive  officer  any  duty 
they  may  think  proper,  which  is  not  repugnant  to  any  rights 
secured  and  protected  by  the  constitution;  and  in  such  cases, 
the  duty  and  responsibihty  grow  out  of  and  are  subject  to  the 
control  of  the  law,  and  not  to  the  direction  of  the  President. 
And  this  is  emphatically  the  case,  where  the  duty  enjoined  is  of 
a  mere  ministerial  character. 

Let  us  proceed,  then,  to  an  examination  of  the  act  required  by 
the  mandamus  to  be  performed  by  the  postmaster  general;  and 
his  obligation  to  perform,  or  his  right  to  resist  the  performance, 
must  depend  upon  the  act  of  congress  of  the  2d  of  July,  1836.  .  .  . 

Under  this  law  the  postmaster  general  is  vested  with  no  discre- 
tion or  control  over  the  decisions  of  the  solicitor;  nor  is  any  appeal 
or  review  of  that  decision  provided  for  by  the  act.  The  terms  of 
the  submission  was  a  matter  resting  entirely  in  the  discretion  of 
congress;  and  if  they  thought  proper  to  vest  such  a  power  in  any 
one,  and  especially  as  the  arbitrator  was  an  officer  of  the  govern- 
ment, it  did  not  rest  with  the  postmaster  general  to  control  Con- 
gress or  the  solicitor,  in  that  affair.  .  .  . 

It  was  urged  at  the  bar,  that  the  postmaster  general  was  alone 
subject  to  the  control  and  direction  of  the  President,  with  respect 
to  the  execution  of  the  duty  imposed  upon  him  by  this  law;  and 
this  right  of  the  President  is  claimed,  as  growing  out  of  the  obliga- 
tion imposed  upon  him  by  the  constitution,  to  take  care  that  the 
laws  be  faithfully  executed.      This  is   a   doctrine  that  cannot 


KENDALL   V.    L^NITED    STATES.  45 

receive  the  sanction  of  this  court.  It  would  be  vesting  in  the 
President  a  dispensing  power,  which  has  no  countenance  for  its 
support  in  any  part  of  the  constitution;  and  is  asserting  a  prin- 
ciple, which,  if  carried  out  in  its  results,  to  all  cases  falling  within 
it,  would  be  clothing  the  President  with  a  power  entirely  to  con- 
trol the  legislation  of  Congress,  and  paralyze  the  administration 
of  justice. 

To  contend  that  the  obhgation  imposed  on  the  President  to  see 
the  laws  faithfully  executed  impUes  a  power  to  forbid  their  execu- 
tion, is  a  novel  construction  of  the  constitution,  and  entirely  in- 
admissible. But  although  the  argument  necessarily  leads  to 
such  a  result,  we  do  not  perceive  from  the  case  that  any  such  power 
has  been  claimed  by  the  President.  But,  on  the  contrary,  it  is 
fairly  to  be  inferred  that  such  power  was  disclaimed.  He  did 
not  forbid  or  advise  the  postmaster  general  to  abstain  from  execut- 
ing the  law,  and  giving  the  credit  thereby  required;  but  submitted 
the  matter,  in  a  message  to  congress.  .  .  . 

The  right  of  the  relators  to  the  benefit  of  the  award  ought  now 
to  be  considered  as  irreversibly  estal)lished;  and  the  question  is 
whether  they  have  any,  and  what  remedy  ? 

The  act  required  by  the  law  to  be  done  by  the  postmaster  general 
is  simply  to  credit  the  relators  -vvith  the  full  amount  of  the  award 
of  the  solicitor.  This  is  a  precise,  definite  act,  purely  ministerial; 
and  about  which  the  postmaster  general  had  no  discretion  what- 
ever. The  law  upon  its  face  shows  the  existence  of  accounts 
between  the  relators  and  the  post  office  department.  No  money 
was  required  to  be  paid;  and  none  could  have  been  drawn  out 
of  the  treasury  without  further  legislative  provision,  if  this  credit 
should  overbalance  the  debit  standing  against  the  relators.  But 
this  was  a  matter  wnth  which  the  postmaster  general  had  no 
concern.  He  was  not  called  upon  to  furnish  the  means  of  paying 
such  balance,  if  any  should  be  found.  He  was  simply  required 
to  give  the  credit.  This  was  not  an  oflficial  act  in  any  other  sense 
than  being  a  transaction  in  the  department  where  the  books  and 
accounts  were  kept;  and  was  an  official  act  in  the  same  sense 
that  an  entry  in  the  minutes  of  a  court,  pursuant  to  an  order  of 
the  court,  is  an  official  act.  There  is  no  room  for  the  exercise  of 
any  discretion,  official  or  othervvise:  all  that  is  shut  out  by  the 
direct  and  positive  command  of  the  law,  and  the  act  required 
to  be  done  is,  in  every  just  sense,  a  mere  ministerial  act. 

And  in  this  view  of  the  case,  the  question  arises,  is  the  remedy 
by  mandamus  the  fit  and  appropriate  remedy  ?  .  .  . 


46  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

The  next  inquiry  is,  whether  the  court  below  liad  jurisdiction 
of  the  case  and  power  to  issue  the  mandamus.^  .  .  . 

The  judgment  of  the  court  below  is  accordingly  afhrnied,  with 
costs,  and  the  cause  remanded  for  further  proceedings.^ 

Taney,  C.  J.,  dissenting.^  .  .  . 

Barbour,  J.,  dissenting.  .  .  . 

Catron,  J.,  dissenting.  ... 


LUTHER,   Plaintiff  in  Error,  v.  BORDEN  et  al,  Defendants 

in  Error.'* 

Supreme  Court  of  the  United  States.     1849. 

[7  Howard,  1.]* 

Error  to  the  Circuit  Court  for  the  District  of  Rhode  Island. 

Hallett  and  Clifford,  for  the  plaintiff.  Webster  and  Whipple, 
contra. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  has  arisen  out  of  the  unfortunate  political  differences 
which  agitated  the  people  of  Rhode  Island  in  1841  and  1842. 

It  is  an  action  of  trespass  brought  by  Martin  Luther,  the  plain- 
tiff in  error,  against  Luther  M.  Borden  and  others,  the  defendants, 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  Rhode 
Island,  for  breaking  and  entering  the  plaintiff's  house.     The  de- 

^  It  was  here  explained  that  the  power  to  issue  a  mandamus  against  an 
officer  of  the  United  States  had  not  been  given  to  the  Circuit  Courts  of  the 
United  States  in  the  several  States  —  citing  Mclntire  v.  Wood,  7  Cranch, 
504  (1813),  —  and  does  not  belong  to  State  courts  —  citing  McClung  v.  Silli- 
man,  6  Wheat.  598  (1821).  On  the  former  point,  see  Knapp  v.  L.  S.  &  M. 
S.  Ry.  Co.,  197  U.  S.  536  (1905).  —  Ed. 

2  Acc,  as  to  the  Supreme  Court  of  the  District  of  Columbia,  United  States 
«;.Schurz,  102  U.  S.  378  (1880). 

Compare  Decatm-  v.  Paulding,  14  Pet.  497  (1840)  (exercise  of  discretion). 

See  Roberts  v.  United  States,  176  U.  S.  221  (1900)  (ministerial  act).  —  Ed. 

'  The  dissents  were  merely  on  the  ground  that  the  power  in  question  had 
not  been  given  to  this  court.  —  Ed. 

*  Catron,  Daniel,  and  McKinley,  JJ.,  did  not  hear  the  argument,  nor 
participate  in  the  decision.  —  Ed. 

^  The  reporter's  statement  has  been  omitted.  —  Ed. 


LUTHER    V.    BORDEX.  47 

fendants  justify  upon  the  ground  that  large  numbers  of  men  were 
assembled  in  different  parts  of  the  State  for  the  purpose  of  over- 
throwing the  government  by  mihtary  force,  and  were  actually 
levying  war  upon  the  State;  that,  in  order  to  defend  itself  from 
this  insurrection,  the  State  was  declared  by  competent  authority 
to  be  under  martial  law;  that  the  plaintiff  was  engaged  in  the 
insurrection;  and  that  the  defendants,  being  in  the  military  ser\-ice 
of  the  State,  by  command  of  their  superior  officer,  broke  and 
entered  the  house  and  searched  the  rooms  for  the  plaintiff,  who 
was  supposed  to  be  there  concealed,  in  order  to  arrest  him,  doing 
as  little  damage  as  possible.  The  plaintiff  replied,  that  the 
trespass  was  committed  by  the  defendants  of  their  own  proper 
^\Tong,  and  \vitiiout  any  such  cause;  and  upon  the  issue  joined 
on  this  replication,  the  parties  proceeded  to  trial.  .  .  . 

The  existence  and  authority  of  the  government  under  which 
the  defendants  acted  was  called  in  question;  and  the  plaintiff 
insists,  that,  before  the  acts  complained  of  were  committed, 
that  government  had  been  displaced  and  annulled  by  the  people 
of  Rhode  Island,  and  that  the  plaintiff  was  engaged  in  supporting 
the  lawful  authority  of  the  State,  and  the  defendants  themselves 
were  in  arms  against  it.  .  .  . 

The  evidence  shows  that  the  defendants,  in  breaking  into  the 
plaintiff's  house  and  endeavoring  to  arrest  him,  as  stated  in  the 
pleadings,  acted  under  the  authority  of  the  government  which 
was  estaljlished  in  Rhode  Island  at  the  time  of  the  Declaration 
of  Independence,  and  which  is  usually  called  the  charter  gov- 
ernment. For  when  the  separation  from  England  took  place, 
Rhode  Island  did  not,  like  the  other  States,  adopt  a  new  con- 
stitution, but  continued  the  form  of  government  established  by 
the  charter  of  Charles  the  Second,  in  1663;  making  only  such 
alterations,  by  acts  of  the  legislature,  as  were  necessary'  to  adapt 
it  to  their  condition  and  rights  as  an  independent  State.  .  .  . 

In  this  form  of  government  no  mode  of  proceeding  was  pointed 
out  by  which  amendments  might  be  made.  It  authorized  the 
legislature  to  prescribe  the  qualification  of  voters,  and  in  the 
exercise  of  this  power  the  right  of  suffrage  was  confined  to  free- 
holders, until  the  adoption  of  the  constitution  of  1843. 

For  some  years  previous  to  the  disturbances  of  which  we  are 
now  speaking,  many  of  the  citizens  became  dissatisfied  with  the 
charter  government,  and  particularly  with  the  restriction  upon 
the  right  of  suffrage.  .  .  .  And  thereupon  meetings  were  held 
and  associations  formed  by  those  who  were  in  favor  of  a  more 


48  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 

extended  right  of  suffrage,  which  finally  resulted  in  the  election 
of  a  convention  to  form  a  new  constitution  to  be  submitted  to 
the  people  for  their  adoption  or  rejection.  This  convention  was 
not  authorized  by  any  law  of  the  existing  government.  It  was 
elected  at  voluntary  meetings,  and  by  those  citizens  only  who 
favored  this  plan  of  reform;  those  who  were  opposed  to  it,  or 
opposed  to  the  manner  in  which  it  was  proposed  to  be  accom- 
plished, taking  no  part  in  the  proceedings.  The  persons  chosen 
as  above  mentioned  came  together  and  framed  a  constitution. 
.  .  .  The  convention  also  prescribed  the  manner  in  which  this 
constitution  should  be  submitted  to  the  decision  of  the  people, 
—  permitting  every  one  to  vote  on  that  question  who  was  an 
American  citizen,  twenty-one  years  old,  and  who  had  a  permanent 
residence  or  home  in  the  State,  and  directing  the  votes  to  be 
returned  to  the  convention. 

Upon  the  return  of  the  votes,  the  convention  declared  that  the 
constitution  was  adopted  and  ratified  by  a  majority  of  the  people 
of  the  State,  and  was  the  paramount  law  and  constitution  of 
Rhode  Island.  And  it  communicated  this  decision  to  the  governor 
under  the  charter  government,  for  the  purpose  of  being  laid  before 
the  legislature;  and  directed  elections  to  be  held  for  a  governor, 
members  of  the  legislature,  and  other  officers  under  the  new  con- 
stitution. These  elections  accordingly  took  place,  and  the  gov- 
ernor, lieutenant-governor,  secretary  of  state,  and  senators  and 
representatives  thus  appointed  assembled  at  the  city  of  Provi- 
dence on  May  3d,  1842,  and  immediately  proceeded  to  organize 
the  new  government,  by  appointing  the  officers  and  passing  the 
laws  necessary  for  that  purpose. 

The  charter  government  did  not,  however,  admit  the  validity 
of  these  proceedings,  nor  acquiesce  in  them.  On  the  contrary, 
in  Januar}^,  1842,  when  this  new  constitution  was  communicated 
to  the  governor,  and  by  him  laid  before  the  legislature,  it  passed 
resolutions  declaring  all  acts  done  for  the  purpose  of  imposing 
that  constitution  upon  the  State  to  be  an  assumption  of  the  powers 
of  government,  in  violation  of  the  rights  of  the  existing  govern- 
ment and  of  the  people  at  large;  and  that  it  would  maintain  its 
authority  and  defend  the  legal  and  constitutional  rights  of  the 
people. 

In  adopting  this  measure,  as  well  as  in  all  others  taken  by  the 
charter  government  to  assert  its  authority,  it  was  supported  by 
a  large  number  of  the  citizens  of  the  State,  claiming  to  be  a  major- 
ity, who  regarded  the  proceedings  of  the  adverse  party  as  unlawful 


LUTHER   V.    BORDEN".  49 

and  disorganizing,  and  maintained  that,  as  the  existing  government 
had  been  established  by  the  people  of  the  State,  no  convention  to 
frame  a  new  constitution  could  be  called  without  its  sanction;  and 
that  the  times  and  places  of  taking  the  votes,  and  the  officers  to 
receive  them,  and  the  qualification  of  the  voters,  must  be  previously 
regulated  and  appointed  by  law. 

But,  notwithstanding  the  determination  of  the  charter  govern- 
ment, and  of  those  who  adhered  to  it,  to  maintain  its  authority, 
Thomas  W.  Dorr,  who  had  been  elected  governor  under  the  new 
constitution,  prepared  to  assert  the  authority  of  that  government 
by  force,  and  many  citizens  assembled  in  arms  to  support  him. 
The  charter  government  thereupon  passed  an  act  declaring  the 
State  under  martial  law,  and  at  the  same  time  proceeded  to  call 
out  the  militia,  to  repel  the  threatened  attack  and  to  subdue  those 
who  were  engaged  in  it.  In  this  state  of  the  contest,  the  house 
of  the  plaintiff,  who  was  engaged  in  supporting  the  authority  of 
the  new  government,  was  broken  and  entered  in  order  to  arrest 
him.  The  defendants  were,  at  the  time,  in  the  military  service 
of  the  old  government,  and  in  arms  to  support  its  authority* .  .  . 
The  plaintiff  contends  that  the  charter  government  was  dis- 
placed, and  ceased  to  have  any  la\\-ful  power,  after  the  organiza- 
tion, in  ]\Iay,  1842,  of  the  government  which  he  supported,  and 
although  that  government  never  was  able  to  exercise  any  authority 
in  the  State,  nor  to  command  obedience  to  its  laws  or  to  its  officers, 
yet  he  insists  that  it  was  the  la^\'ful  and  established  government, 
upon  the  ground  that  it  was  ratified  by  a  large  majority  of  the 
male  people  of  the  State  of  the  age  of  twenty-one  and  upwards, 
and  also  by  a  majority  of  those  who  were  entitled  to  vote  for 
general  officers  under  the  then  existing  laws  of  the  State.  The 
fact  that  it  was  so  ratified  was  not  admitted;  and  at  the  trial  in 
the  Circuit  Court  he  offered  to  prove  it  by  the  production  of  the 
original  ballots,  and  the  original  registers  of  the  persons  voting, 
verified  by  the  oaths  of  the  several  moderators  and  clerks  of  the 
meetings,  and  by  the  testimony  of  all  the  persons  so  voting,  and 
by  the  said  constitution;  and  also  offered  in  e\ddence,  for  the  same 
purpose,  that  part  of  the  census  of  the  United  States  for  the 
year  1840  which  applies  to  Rhode  Island;  and  a  certificate  of  the 
secretary  of  state  of  the  charter  government,  showing  the  number 
of  votes  polled  by  the  freemen  of  the  State  for  the  ten  years  then 
last  past. 

The  Circuit  Court  rejected  this  e\idence,  and  instructed  the 
jury  that  the  charter  government   and   laws  under  which   the 


50  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

defendants  acted  were,  at  the  time  the  trespass  is  alleged  to 
have  been  committed,  in  full  force  and  effect  as  the  form  of 
government  and  paramount  law  of  the  State,  and  constituted 
a  justification  of  the  acts  of  the  defendants  as  set  forth  in  their 
pleas. 

It  is  this  opinion  of  the  Circuit  Court  that  we  are  now  called 
upon  to  review.  .  .  . 

Certainly,  the  question  which  the  plaintiff  proposed  to  raise 
by  the  testimony  he  offered  has  not  heretofore  been  recognized 
as  a  judicial  one  in  any  of  the  State  courts.  In  forming  the  con- 
stitutions of  the  different  States,  after  the  Declaration  of  Inde- 
pendence, and  in  the  various  changes  and  alterations  which  have 
since  been  made,  the  political  department  has  always  determined 
whether  the  proposed  constitution  or  amendment  was  ratified 
or  not  by  the  people  of  the  State,  and  the  judicial  power  has  fol- 
lowed its  decision.  In  Rhode  Island,  the  question  has  been 
directly  decided.  Prosecutions  were  there  instituted  against 
some  of  the  persons  who  had  been  active  in  the  forcible  opposition 
to  thg  old  government.  .  .  . 

But  the  courts  uniformly  held  that  the  inquiry  proposed  to 
be  made  belonged  to  the  political  power  and  not  to  the  judicial; 
that  it  rested  with  the  political  power  to  decide  whether  the  charter 
government  had  been  displaced  or  not;  and  when  that  decision 
was  made,  the  judicial  department  would  be  bound  to  take  notice 
of  it  as  the  paramount  law  of  the  State,  without  the  aid  of  oral 
evidence  or  the  examination  of  witnesses;  that,  according  to  the 
laws  and  institutions  of  Rhode  Island,  no  such  change  had  been 
recognized  by  the  political  power;  and  that  the  charter  govern- 
ment was  the  lawful  and  established  government  of  the  State 
during  the  period  in  contest,  and  that  those  who  were  in  arms 
against  it  were  insurgents,  and  liable  to  punishment.  .  .  . 

The  point,  then,  raised  here  has  been  already  decided  by  the 
courts  of  Rhode  Island.  The  question  relates,  altogether,  to 
the  constitution  and  laws  of  that  State;  and  the  well  settled  rule 
in  this  court  is,  that  the  courts  of  the  United  States  adopt  and 
follow  the  decisions  of  the  State  courts  in  questions  which  concern 
merely  the  constitution  and  laws  of  the  State.  .  .  . 

Moreover,  the  Constitution  of  the  United  States,  as  far  as  it 
has  provided  for  an  emergency  of  this  kind,  and  authorized  the 
general  government  to  interfere  in  the  domestic  concerns  of  a 
State,  has  treated  the  subject  as  political  in  its  nature,  and  placed 
the  power  in  the  hands  of  that  department. 


LUTHER   V.    BORDEN.  51 

The  fourth  section  of  the  fourth  article  of  the  Constitution  of 
the  United  States  pro\'ides  that  the  United  States  shall  guar- 
antee to  every  State  in  the  Union  a  republican  form  of  govern- 
ment, and  shall  protect  each  of  them  against  invasion;  and  on 
the-application  of  the  legislature  or  of  the  executive  (when  the  leg- 
islature cannot  be  convened)  against  domestic  violence. 

Under  this  article  of  the  Constitution  it  rests  with  Congress 
to  decide  what  government  is  the  estabhshed  one  in  a  State. 
For  as  the  United  States  guarantee  to  each  State  a  republican 
government,  Congress  must  necessarily  decide  what  government 
is  established  in  the  State  before  it  can  determine  whether  it  is 
republican  or  not.  And  when  the  senators  and  representatives 
of  a  State  are  admitted  into  the  councils  of  the  Union,  the  authority 
of  the  government  under  which  they  are  appointed,  as  well  as  its 
republican  character,  is  recognized  by  the  proper  constitutional 
authority.  And  its  decision  is  binding  on  every  other  department 
of  the  government,  and  could  not  be  questioned  in  a  judicial 
tribunal.  It  is  true  that  the  contest  in  this  case  did  not  last  long 
enough  to  bring  the  matter  to  this  issue;  and  as  no  senators  or 
representatives  were  elected  under  the  authority  of  the  govern- 
ment of  which  Mr.  Dorr  was  the  head,  Congress  was  not  called 
upon  to  decide  the  controversy.  Yet  the  right  to  decide  is  placed 
there,  and  not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article 
of  the  Constitution,  providing  for  cases  of  domestic  violence. 
It  rested  with  Congress,  too,  to  determine  upon  the  means  proper 
to  be  adopted  to  fulfil  this  guarantee.  They  might,  if  they  had 
deemed  it  most  advisable  to  do  so,  have  placed  it  in  the  power 
of  a  court  to  decide  when  the  contingency  had  happened  which 
required  the  federal  government  to  interfere.  But  Congress 
thought  otherwise,  and  no  doubt  wisely;  and  by  the  act  of  Febru- 
ary 28,  1795,  provided,  that,  "  in  case  of  an  insurrection  in  any 
State  against  the  government  thereof,  it  shall  be  lawful  for  the 
President  of  the  United  States,  on  appHcation  of  the  legislature 
of  such  State  or  of  the  executive  (when  the  legislature  cannot  be 
convened),  to  call  forth  such  numl^er  of  the  militia  of  any  other 
State  or  States,  as  may  be  applied  for,  as  he  may  judge  sufficient 
to  suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had 
arisen  upon  which  the  government  of  the  United  States  is  bound 
to  interfere  is  given  to  the  President.  He  is  to  act  upon  the 
application  of  the  legislature  or  of  the  executive,  and  consequently 


52  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 

he  must  determine  what  body  of  men  constitute  the  legislature, 
and  who  is  the  governor,  before  he  can  act.  The  fact  that  both 
parties  claim  the  right  to  the  government  cannot  alter  the  case, 
for  both  cannot  be  entitled  to  it.  If  there  is  an  armed  conflict, 
like  the  one  of  which  we  are  speaking,  it  is  a  case  of  domestic 
violence,  and  one  of  the  parties  must  be  in  insurrection  against 
the  lawful  government.  And  the  President,  must,  of  necessity, 
decide  which  is  the  government,  and  which  party  is  unlawfully 
arrayed  against  it,  before  he  can  perform  the  duty  imposed  upon 
him  by  the  act  of  Congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a 
Circuit  Court  of  the  United  States  authorized  to  inquire  whether 
his  decision  was  right  ?  Could  the  court,  while  the  parties  wore 
actually  contending  in  arms  for  the  possession  of  the  government, 
call  wntnesses  before  it  and  inquire  which  party  represented  a 
majority  of  the  people  ?  If  it  could,  then  it  would  become  the 
duty  of  the  court  (provided  it  came  to  the  conclusion  that  the 
President  had  decided  incorrectly)  to  discharge  those  who  were 
arrested  or  detained  by  the  troops  in  the  service  of  the  United 
States  or  the  government  which  the  President  was  .endeavoring 
to  maintain.  If  the  judicial  power  extends  so  far,  the  guarantee 
contained  in  the  Constitution  of  the  United  States  is  a  guarantee 
of  anarchy,  and  not  of  order.  Yet  if  this  right  does  not  reside  in 
the  courts  when  the  conflict  is  raging,  if  the  judicial  power  is  at 
that  time  bound  to  follow  the  decision  of  the  political,  it  must 
be  equally  bound  when  the  contest  is  over.  It  cannot,  when 
peace  is  restored,  punish  as  offences  and  crimes  the  acts  which 
it  before  recognized,  and  was  bound  to  recognize,  as  lawful. 

It  is  true  that  in  this  case  the  militia  were  not  called  out  by 
the  President.  But  upon  the  application  of  the  governor  under 
the  charter  government,  the  President  recognized  him  as  the 
executive  power  of  the  State,  and  took  measures  to  call  out  the 
militia  to  support  his  authority  if  it  should  be  found  necessary 
for  the  general  government  to  interfere;  and  it  is  admitted  in  the 
argument,  that  it  was  the  knowledge  of  this  decision  that  put  an 
end  to  the  armed  opposition  to  the  charter  government,  and 
prevented  any  further  efforts  to  establish  by  force  the  proposed 
constitution.  The  interference  of  the  President,  therefore,  by 
announcing  his  determination,  was  as  effectual  as  if  the  militia 
had  been  assembled  under  his  orders.  And  it  should  be  equally 
authoritative.  For  certainly  no  court  of  the  United  States,  with 
a  knowledge  of  this  decision,  would  have  been  justified  in  recog- 


LUTHER   V.    BORDEN.  53 

nizing  the  opposing  party  as  the  Ia^\-ful  government;  or  in  treating 
as  A\Tong-doers  or  insurgents  the  officers  of  the  government  which 
the  President  had  recognized,  and  was  prepared  to  support  by  an 
armed  force.  In  the  case  of  foreign  nations,  the  government 
acknowledged  by  the  President  is  always  recognized  in  the  courts 
of  justice.  And  this  principle  has  been  applied  by  the  act  of 
Congress  to  the  sovereign  States  of  the  Union.  .  .  . 

The  remaining  question  is  whether  the  defendants,  acting  under 
military  orders  issued  under  the  authority  of  the  government, 
were  justified  in  breaking  and  entering  the  plaintiff's  house.  In 
relation  to  the  act  of  the  legislature  declaring  martial  law,  it  is 
not  necessary  in  the  case  before  us  to  inquire  to  what  extent,  nor 
under  what  circumstances,  that  power  may  be  exercised  by  a 
State.  Unquestionably  a  military  government,  established  as 
the  permanent  government  of  the  State,  would  not  be  a  repu])lican 
government,  and  it  would  be  the  duty  of  Congress  to  overtlirow 
it.  But  the  law  of  Rhode  Island  evidently  contemplated  no  such 
government.  It  was  intentled  merely  for  the  crisis,  and  to  meet 
the  peril  in  which  the  existing  government  was  placed  by  the 
armed  resistance  to  its  authority.  It  was  so  understood  and  con- 
strued by  the  State  authorities.  And,  unquestionably,  a  State 
may  use  its  military  power  to  put  down  an  armed  insurrection, 
too  strong  to  be  controlled  by  the  civil  authority.  The  power 
is  essential  to  the  existence  of  every  government,  essential  to  the 
preservation  of  order  and  free  institutions,  and  is  as  necessary  to 
the  States  of  this  Union  as  to  any  other  government.  The  State 
itself  must  determine  what  degree  of  force  the  crisis  demands. 
And  if  the  government  of  Rhode  Island  deemed  the  armed  opposi- 
tion so  formidable,  and  so  ramified  throughout  the  State,  ^s  to 
require  the  use  of  its  military  force  and  the  declaration  of  martial 
law,  we  see  no  ground  upon  which  this  court  can  question  its 
authority.  It  was  a  st^te  of  war;  and  the  established  govern- 
ment resorted  to  the  rights  and  usages  of  war  to  maintain  itself, 
and  to  overcome  the  unlawful  opposition.  And  in  that  state  of 
things  the  officers  engaged  in  its  military  service  might  la\\'fully 
arrest  any  one,  who,  from  the  information  before  them,  they  had 
reasonable  grounds  to  believe  was  engaged  in  the  insurrection; 
and  might  order  a  house  to  be  forcibly  entered  and  searched, 
when  there  were  reasonable  grounds  for  supposing  he  might  be 
there  concealed.  .  .  . 

Upon  the  whole,  we  see  no  reason  for  disturbing  the  judgment 
of  the  Circuit  Court.     The  admission  of  e\idence  to  prove  that 


54 


LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 


the  charter  government  was  the  estabHshed  government  of  the 
State  was  an  irregularity,  but  is  not  material  to  the  judgment. 
A  Circuit  Court  of  the  United  States  sitting  in  Rhode  Island  is 
presumed  to  know  the  constitution  and  law  of  the  State.  And 
in  order  to  make  up  its  opinion  upon  that  subject,  it  seeks  informa- 
tion from  any  authentic  and  available  source,  without  waiting  for 
the  formal  introduction  of  testimony  to  prove  it,  and  without  con- 
fining itself  to  the  process  which  the  parties  may  offer.  But  this 
error  of  the  Circuit  Court  does  not  affect  the  result.  For  whether 
this  evidence  was  or  was  not  received,  the  Circuit  Court,  for  the 
reasons  herein  before  stated,  was  bound  to  recognize  that  govern- 
ment as  the  paramount  and  established  authority  of  the  State. 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned  upon 
political  rights  and  political  questions,  upon  which  the  court  has 
been  urged  to  express  an  opinion.  We  decline  doing  so.  The 
high  power  has  been  conferred  on  this  court  of  passing  judgment 
upon  the  acts  of  the  State  sovereignties,  and  of  the  legislative  and 
executive  branches  of  the  federal  government,  and  of  determining 
whether  they  are  beyond  the  limits  of  power  marked  out  for  them 
respectively  by  the  constitution  of  the  United  States.  This 
tribunal,  therefore,  should  be  the  last  to  overstep  the  boundaries 
which  hmit  its  own  jurisdiction.  And  while  it  should  always  be 
ready  to  meet  any  question  confided  to  it  by  the  Constitution,  it  is 
equally  its  duty  not  to  pass  beyond  its  appropriate  sphere  of 
action,  and  to  take  care  not  to  involve  itself  in  discussions  which 
properly  belong  to  other  forums.  .  .  . 

The  judgment  of  the  Circuit  Court  must,  therefore,  be 

^  Affirmed, 

Woodbury,  J.,  dissenting.  . . . 


THE    PRIZE    CASES.  OO 

THE  PRIZE  CASES. 
Supreme  Court  of  the  United  States.     1862. 

[2  Black,  635.] 

These  were  cases  in  which  the  vessels  named,  together  Tvnth 
their  cargoes,  were  severally  captured  and  brought  in  as  prizes 
by  public  ships  of  the  United  States.  The  libels  were  filed  by 
the  proper  District  Attorneys,  on  behalf  of  the  United  States 
and  on  behalf  of  the  officers  and  crews  of  the  ships,  by  which  the 
captures  were  respectively  made.  In  each  case  the  District  Court 
pronounced  a^ecree, of  condemnation,  from  which  the  claimants 
took  an  appeal.  .  .  . 

Tlic  ( a-i-  of  the  Amy  Warwick  was  argued  by  Da/ia  for  libellants, 
and  by  Bangs  for  claimants.  The  Crenshaw,  by  Eames  for  hbel- 
lants,  and  by  Lord,  Edwards,  and  Donahue  for  claimants.  The 
Hiawatha,  by  Evarts  and  Sedgwick  for  libellants,  and  by  Edwards 
for  claimants.  The  Brilliante,  by  Evans  for  libellants,  and  by 
Carlisle  for  claimants. 

Grier,  J.  .  .  . 

Had  tlu'  President  a  right  to  in^^titute  a  !)lockade  of  ports  in 
posse.ssiun  of  persons  in  armcil  rcl»t'llion  against  the  government, 
on  the  principles  of  international  hiw,  as  knowoi  and  acknowledged 
among  civtliz'ed  states  ?  .  .  . 

Neutrals  have  a  ri^flit  to  challenge  the  _existence  of  a  blockade 
de  facto,  and  al-o  the  authority  of  the  party  exercising  the  right 
to  institute  it.  They  have  a  right  to  enter  the  ports  of  a  friendly 
nation  for  the  purposes  of  trade  and  commerce,  but  are  bound  to 
recognize  the  rights  of  a  belligerent  engaged  in  actual  war,  to  use 
this  mode  of  coercion,  for  the  purpose  of  subduing  the  enemy. 

That  a  blockade  de  facto  actually  existed,  and  was  formally 
declared  and  notified  by  the  President  on  the  27th  and  30th  of 
April,  1861,  is  an  admitted  fact  in  these  cases. 

That  the  President,  as  the  Executive  Chief  of  the  Government 
and  Commander-in-chief  of  the  Army  and  Navy,  was  the  proper 
ptr-iin  to  make  such  notification,  has  not  beenj_and^cannot  be 
disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  "jus  belli," 
and  is  governed  and  adjudged  under  the  law  of  nations.  To 
legitimate  the  capture  of  a  neutral  vessel  or  property  on  the  high 
seas,  a  war  must  exist  de  facto,  and  the  neutral  must  have  a  knowl- 
edge or  notice  of  the  intention  of   one  of   the  parties  belligerent 


56  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

to  use  this  mode  of  coercion  against  a  port,  city,  or  territory,  in 
possession  ol:  J.be.  otHer. .— >. 

Lei~us  inquire  whether,  at  the  time  this  blockade  was  insti- 
tuted, a  state  of  war  existed  which  would  justify  a  resort  to  these 
means  of  subduing  the  hostile  force.  .  .  . 

As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine,  against 
insurgents,  its  actual  existence  is  a  fact  in  our  domestic  history 
which  the  court  is  bound  to  notice  and  to  know.  ... 

By  the  Constitution,  Congress  alone  has  the  power  to  declare 
a  national  or  foreign  war.  Jt_£iiniLQt  declare  war  against  a  State, 
or  any  number  of  .^i:''-.  1)}'  virtue  of  aii\'  danx'  in  llic  (M^istiiiT: 
tion.  .The  Constitution  confers  on  the  President  the  whole  exec-^ 
utive  power.  He  is  bound  to  take  care  that  the  laws  be  faithfully 
executed.  He  is  Commander-in-chief  of  the  Army  and  Navvof 
the  United  States,  and  of  the  militia  of  Tneseveral  States  when 
called  into  the  actual  service  of  flio  Ignited  States.  He  has  lio 
power  to  initiate  or  cUn'lare  a  war  cither  aLLain-t  a  foreign  nation 
or  a  domestic  State.  But  by  the  acts  of  Congress  of  February 
28th,  1795,  and  3d  of  INIarch,  1807,  he  is  authorized  to  call  out  the 
militia  and  u-e  the  militar}'  and  naval  forces  of  the  United  Stales 
in  case  of  invasion  b}'  foreign  nations,  and  to  suppress  insurrection 
against  the  government  of  a  State  or  of  the  United  States. 

If  a  Avar  be  niailc  1  > y  invasion  of  a  forci,i,-n  nation,  the  President 
is  not  only  authorized  but  bound  to  resist  force  by  force.  He 
does  not  initiate  the  war,  but  is  bound  to  accept  the  challenge 
without  waiting  for  any  special  legislative  authority.  And  whether 
the  hostile  party  be  a  foreign  invader,  or  States  organized  in-*e- 
bellion,  it  is  none  the  less  a  war.  .  .  . 

This  greatest  of  civil  wars  was  not  gradually  developed  by 
popular  commotion,  tumultuous  assemblies,  or  local  unorganized 
insurrections.  However  long  may  have  been  its  previous  con- 
ception, it  nevertheless  sprung  forth  suddenly  from  the  parent 
brain,  a  Minerva  in  the  full  panoply  of  war.  The  President  was 
bound  to  meet  it  in  the  shape  it  presented  itself,  without  waiting 
for  Congress  to  baptize  it  ynih.  a  name;  and  no  name  given  to 
it  by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  may  be  called  an  "  insurrection  "  by  one  side, 
and  the  insurgents  be  considered  as  rebels  or  traitors.  It  is  not 
necessary  that  the  independence  of  the  revolted  province  or  State 
be  acknowledged  in  order  to  constitute  it  a  party  belligerent  in  a 
war  according  to  the  law  of  nations.  .  .  . 


THE    PRIZE    CASES. 


57 


Whether  the  President  in  fulfilhng  his  duties,  as  Commander- 
in-"chief,  in  suppressing  an  insurrection,  has  met  with  such  armed 
Fo-t ill 'V(-! -stance,  and  a  civil  war  of  such  alarming  proportions 

"~as  will  compel  him  to  ac'ord  to  them  the  character  of  belligerents, 
isTquestionTo  1  )c  decided  1  )y  him,  and  this  court  must  be  governed 

'bythe  decisions  and  acts  of  the  political  department  of  the  govern- 
ment to  which  this  powor  was  intrusted.  '  "  He  must  determine 
what  degree  of  force  the  cii-is  deiiiaiid-.  '  The  proclamation  of 
blockade  is  itself  official  and  conclusive  evidence  to  the  court  that 
a  state  of  war  existed  which  demanded  and  authorized  a  recourse 
to  such  a  measure,  under  the  circumstances  peculiar  to  the  case. 

The  correspondence  of  Lord  Lyons  -with  the  Secretary  of  State 
admits  the  fact  and  concludes  the  question. 

If  it  were  necessary  to  the  technical  existence  of  a  war,  that  it 
should  have  a  legislative  sanction,  we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  legislature  of  1861, 
which  was  wholly  employed  in  enacting  laws  to  enable  the  gov- 
ernment to  prosecute  the  war  with  vigor  and  efficiency.  And 
finally,  in  1861,  we  find  Congress  "  ex  majore  cautela  "  and  in 
anticipation  of  such  astute  objections,  passing  an  act  "  approy::^ 
uvs.  I<  uaii/.iu^i;,  and  inikni.:^  \M!id  ■'  ■  1 1  the  a(;--ts,  proclamations,  and 
onl<  IN  of  tiie  I'li-id'iit  ''  ihey  had  been  isf^iipr]  mid  dona 

~7///'/*/-  /'.'   jir^rnj^js  (x.,  ■  J  and  direction  of  the  Congress_ 

of  ihc   I'liilcd   Mai.-," 

'  Without  admitting  that  such  an  act  was  necessary  under  the 
circumstances,  it  is  plain  that  if  the  President  had  in  any  manner 
assumed  powers  which  it  was  necessary  should  have  the  authority 
or  sanction  of  Congress,  that  on  the  well  known  principle  of  law, 
"  omnis  ratihabitio  retrotrahitur  et  mandato  equiparatur,"  this 
ratification  has  operated  to  perfectly  cure  the  defect.  .  .  . 

The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post 
facto,  and  therefore  unconstitutional  and  void,  might  possibly  have 
some  weight  on  the  trial  of  an  incUctment  in  a  criminal  court. 
But  precedents  from  that  source  cannot  be  received  as  authori- 
tative in  a  tribunal  administering  public  and  international  law. 

Qn  this  first  question  therefore  we  are  of  the  opinion  that  the 
President  had  a  riulit,  jure  belli,  to  institute  a  blockade  ofjpqrts. 
in  possession  of  the  States  in  rebellion,  which  neutrals  are  bound 

to  regard,.^  .  . 

We  now  proceed  to  notice  the  facts  peculiar  to  the  several  cases. 
.     The  principles  which  have  just  been  stated  apply  alike 
to  all.  .  .  . 


58  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

The  brig  Amy  Warwick  .  .  .  was  captured  upon  the  high  seas 
by  the  United  States  gunboat  Quaker  City,  and  with  her  cargo 
was  sent  into  the  District  of  Massachusetts  for  condemnation. 
The  brig  was  claimed  by  David  Currie  and  others.  The  cargo 
consisted  of  coffee,  and  was  claimed,  four  hundred  bags  by  Edmund 
Davenport  &  Co.,  and  four  thousand  seven  hundred  bags  by 
Dunlap,  Moncure  &  Co.  The  title  of  these  parties  as  respectively 
claimed  was  conceded.  All  the  claimants  at  the  time  of  the 
capture,  and  for  a  long  time  before,  were  residents  of  Richmond, 
Va.,  and  were  engaged  in  business  there.  Consequently,  their 
property  was  justly  condemned  as  "  enemies'  property."  .  .  . 

The  case  presents  no  question  but  that  of  enemies'  property. 

The  decree  below  is  affirmed  with  costs. ^  .  .  . 

Nelson,  J.,  dissenting.  .  .  . 

Taney,  C.  J.,  Catron,  J.,  and  Clifford,  J.,  concurred  in  the 
dissenting  opinion.  .  .  . 


Ex  parte  MILLIGAN. 

Supreme  Court  of  the  United  States.     1866. 

[A  Wallace,  2.V 

This  case  came  before  the  court  on  certificate  of  division  from 
the  Circuit  Court  for  the  District  of  Indiana  on  a  petition  for 
discharge  from  unlawful  imprisonment.  The  act  of  March  3, 
1863  (12  U.  S.  St.  at  Large,  755)  authorized  the  President  to 
suspend  the  writ  of  habeas  corpus  throughout  the  United  States 
during  the  Civil  War,  and  required  that  lists  of  prisoners  who  were 
citizens  of  States  wherein  the  administration  of  law  by  the  federal 
courts  had  been  unimpaired,  and  who  were  held  by  the  United 
States  otherwise  than  as  prisoners  of  war,  should  be  furnished 
to  the  judges  of  the  federal  courts,  and  also  that,  in  case  a  grand 
jury  of  such  a  court  should  fail  to  indict  a  person  on  the  list,  the 
judge  should  make  an  order  that  such  prisoner  should  be  brought 
before  the  court  to  be  discharged  on  entering  into  recognizance, 
if    required,  for  good  behavior  or  for  future  appearance.      The 

1  In  The  Protector,  12  Wall.  700  (1871),  the  dates  of  the  beginning  and  end  of 
the  Civil  War  being  important  for  purposes  of  the  Statute  of  Limitations,  it  was 
held  that  those  dates  were  determined  by  the  President's  proclamations. — Ed, 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


Ex  parte  milligan.  59 

President  by  proclamation,  Sept.  15,  18G3  (13  U.  S.  St.  at  Large, 
734) ,  recited  this  statute  and  suspended  the  privilege  of  the  writ  . 
in^ses  where  persons  were  held  bv  the  Unitpd  Stnt^s  «s  prisoners 
of  war,  spies,  aiders  or  abettors  of  the  enemy,  or  for  resisting  a 
draft,  or  for  any  offence  against  the  military  or  naval  service. 
On  Oct.  5,  1864,  Milligan,  a  citizen  of  Indiana,  was  arrested  in 
that  State  by  order  of  the  military  commandant  of  the  District 
of  Indiana.      On  Oct.  21,  1864,  he  was  brought  before  a  mili- 
tary commission  convoked  by  the  commandant.      He  was  found  _ 
"cnu'lty2r22Il!r^'''"ir  nrnip^^  ^^^  g'^vernment  of  tb^  TTn^tprl  Stafps, 
"  affordiiTg  aid  and  comfort  to  the  enemy,  inciting  insurrection,  and 
violatmg  thelaws  of  war.     He  was  sentenced  to  death,  and  the 
"■  sentence  was  approved  by  President  Johnson,  the  execution  to 
occur  on  May  19,  1865.     On  Jan.  2,  1865,  after  the  proceedings 
of  the  military  commission  were  at  an  end,  the  Circuit  Court  met, 
m  Indiana,  and  mipaneled  a  grand  jurv:  and  on  Jan.  27,  1865^ 
the  court  adjourned,  neither  that  grand  jurv  nor  anv  other  having, 
found  an  indictment  against  Milligan.     On  May  10,  1865,  Milligan 
filed  his  petition,  stating  the  facts  and  praying  that  he  be  brought 
before  the  court  in  accordance  with  the  act  of  Congress,  and  that 
he  be  either  turned  over  to  the  proper  civil  tribunal  or  discharged 
from  custody.     The  opinions  of  the  judges  were  opposed  on  the 
following  three  questions  certified :  — 

1st.   On  the  facts  stated,  ought  a  writ  of  habeas  corpus  to  be  _ 

_issued-? 

2d.   On  the  facts  stated,  ought  Milligan  to  be  discharged  from 

custody  ? 

3d.   Whether,  on  the  facts  stated,  the  military  commission  had 
Jurisdiction  legallv  to  trv  and  sentence  Millip-an. 

J.  E.  McDonald,  J.  S.  Black,  J.  A.  Garfield,  and  D.  D.  Field, 
for  the  petitioner.  Speed,  A.  G.,  Stanbery,  and  B.  F.  Butler,  special 
counsel  for  the  United  States,  contra. 

Davis,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  controlling  question  in  this  case  is  this:  Unon  the  facts 
stated  in  Milligan's  petition,  and  the  exhibits  filed,  had  the  mili- 
tary commission  mentioned  in  it  jurisdiction,  legally,  to  try  and 
•"  sentence  him  ?  Milligan,  not  a  resident  of  one  of  the  rebellious 
__  states,  or  a  prisoner  of  war,  but  a  citizen  of  Indiana  for  twenty 
years  past,  and  never  in  the  military  or  naval  service,  is,  wniie  at 
his^home,  arrested  by  the  mihtary  power  of  the  United  States," 
imprisoned,  and,  on  certain  criminal  charges  preferred  against 
him,  tried,  convicted,  and  sentenced  to  be  hanged  by  a  military 


60  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS. 

commission^  organized  under  the  direction  of  tlie  military  com- 
mander of  ijho  Tnilitnry  flistrict  of  Indiana.  Had  this  tribunal 
the  legal  power  and  authority  to  try  and  punish  this  man  ? 

No  graver  question  was  ever  considered  by  this  court,  nor 
one  which  more  nearly  concerns  the  rights  of  the  whole  people; 
for  it  is  the  birthright  of  every  American  citizen,  when  charged 
with  crime,  to  be  tried  and  punished  according  to  law.  The  power 
of  punishment  is  alone  through  the  means  which  the  laws  have 
provided  for  that  purpose,  and  if  they  are  inefTectual,  there  is  an 
immunity  from  punishment,  no  matter  how  great  an  offender  the 
individual  may  be,  or  how  much  his  crimes  may  have  shocked 
the  sense  of  justice  of  the  country,  or  endangered  its  safety.  By 
the  protection  of  the  law  human  rights  are  secured :  withdraw 
"that  protection,  and  they  are  at  the  mercy  of  wicked  rulers,  or 
the  clarnorofan  f^XCited  people.  If  there  was  law  to  justify  this 
military  trial,  it  is  not  our  province  to  interfere;  if  there  was  not, 
it  is  our  duty  to  declare  the  nullity  of  the  whole  proceedings. 
The  decision  of  this  question  does  not  depend  on  argument  or 
judicial  precedents,  numerous  and  highly  illustrative  as  they  are. 
These  precedents  inform  us  of  the  extent  of  the  struggle  to  preserve 
_Jiherty  and  to  relieve  those  in  civil  life  from  military  trinls.  The 
founders  of  our  government  were  familiar  with  the  history  of  that 
struggle;  and  secured  in  a  written  constitution  every  right  which 
the  people  had  wrested  from  power  during  a  contest  of  ages.  By 
that  Constitution  and  the  laws  authorized  by  it  this  question 
must  be  determined.  .  .  . 

Have  any  of  the  rights  guaranteed  by  the  Constitution  been 
violated  in  the  case  of  Miiligan  V  and  it  so,  Avhat  are  they  ? 

Every  trial  involves  the  exercise  ot  judicial  power;  and  from 
wTiat  source  did  the  military  commission  that  tried  him  derive 
their  authority  ?  Certainly  no  part  of  the  judicial  power  of  the 
country  was  conferred  on  them;  because  the  Constitution  ex^ 
presslv  vests  it  "  in  one  supreme  court  an  J  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  establishJ.^ 
and  it  is  not  pretended  that  the  commission  was  a  court  ordained 
and  established  by  Congress.  They  cannot  justify  on  the  man- 
date of  the  President;  because  he  is  controlled  by  law,  and  has 
his  appropriate  sphere  of  duty,  which  is  to  execute,  not  to  make, 
the  laws;  and  there  is  "  no  unwritten  criminal  code  to  which 
resort  cgri  be  hnd  as  a  sQurce  of  jurisdiction." 

But  it  is  said  that  the  jurisdiction  is  complete  under  the  "  laws 
and  usages  of  war." 


Ex  parte  milligan.  61 

It  can  serve  no  useful  purpose  to  inquire  what  those  laws  and 
usages  are,  whence  they  originated,  where  found,  and  on  whom 
they  operate;  they  can  never  be  applied  to  citizens  in  States  which 
have  upheld  thp  authority  of  the  government,  and  where  tlie, 
courts  are  open  and  their  process  unobstructed.  This  court  has 
judicial  knowledge  that  in  Indiana  the  federal  authority  was 
always  unopposed,  and  its  courts  always  open  to  hear  criminal 
accusations  and  redress  grievances;  and  no  nsncrp  of  wn'^  nnnir] — 
sanction  a  military  trial  there  for  any  offence  whatever  ^^  "  oitizpn 
in  civil  life,  in  nowise  connected  with  the  military  sprvipp  Con- 
gress could  grant  no  such  power;  and  to  the  honor  of  our  national 
legislature  be  it  said,  it  has  never  been  provoked  by  the  state  of 
the  country  even  to  attempt  its  exercise.  One  of  the  plainest 
constitutional  provisions  was,  therefore.  infT''n|";pd  w}ipn  \Tillifj;an 

was  tried   bv   a  ^Pl'^^'   ^'^<^^-   nr.l-nnpfj    ^n<l    PsfQ}>li>-hQf]    Ky   f^onorrpcjc; 

and  not  com|)osed  of  judgi^s  appointed  during  good  bcha\dor.  .  .  . 

It  is  claimed  that  martial  law  covers  with  its  broad  mantle  the 
proceedings  of  this  military  commission.  The  proposition  is  this: 
that  in  a  time  of  war  the  commander  of  an  armed  force  (if  in  his 
opinion  the  exigencies  of  the  country  demand  it,  and  of  which  he 
is  to  judge)  has  the  power,  within  the  lines  of  his  military  district, 
to  suspend  all  civil  rights  and  their  remedies,  and  subject  citizens 
as  well  as  soldiers  to  the  rule  of  his  will;  and  in  the  exercise  of  his 
lawful  authority  cannot  be  restrained,  except  by  his  superior 
officer  or  the  President  of  the  United  States. 

If  this  position  is  sound  to  the  extent  claimed,  then  when  war 
exists,  foreign  or  domestic,  and  the  country  is  subdivided  into 
military  departments  for  mere  convenience,  the  commander  of 
one  of  them  can,  if  he  chooses,  within  his  limits,  on  the  plea  of 
necessity,  with  the  approval  of  the  Executive,  substitute  military 
force  for  and  to  tlie  exclusion  of  the  laws,  and  punish  all  persons, 
as  he  thinks  right  and  proper,  without  fixed  or  certain  rules. 

The  statement  of  this  proposition  shows  its  iTnport.nnnp;  for, 
if  true,  republican  government  is  a  failure,  and  there  is  an  end  of  _ 
liberty  regulated~17y  l^VT. — Martial  Taw,  established  on  such  a 
basis,  destroys  every  guarantee  of  the  Constitution,  and  effectually 
renders  the  "  military  independent  of  and  superior  to  the  civil 
power  "  —  the  attempt  to  do  which  by  the  King  of  Great  Britain 
was  deemed  by  our  fathers  such  an  offence  that  they  assigned  it 
to  the  world  as  one  of  the  causes  which  impelled  them  to  declare 
their  independence.     Civil  liberty  and  this  kind  of  martial  law  ■ 

^nnot  endure  together;    t!ie  antagonism  is  irreconcilable;    and.^ 

in  the  conflict,  one  or  the  other  must  perish."" 


62  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

This  nation,  as  experience  has  proved,  cannot  always  remain 
at  peace,  and  has  no  right  to  expect  that  it  will  always  have  wise 
and  humane  rulers,  sincerely  attached  to  the  principles  of  the 
Constitution.  Wicked  men,  ambitious  of  power,  with  hatred  of 
liberty  and  contempt  of  law,  may  fill  the  place  once  occupied  by 
Washington  and  Lincoln;  and  if  this  right  is  conceded,  and  the 
calamities  of  war  again  befall  us,  the  dangers  to  human  liberty 
are  frightful  to  contemplate.  If  our  fathers  had  failed  to  provide 
for  just  such  a  contingency,  they  would  have  been  false  to  the 
trust  reposed  in  them.  They  knew  —  the  history  of  the  world 
told  them  —  the  nation  they  were  founding,  be  its  existence  short 
or  long,  would  be  involved  in  war;  how  often  or  how  long  continued 
human  foresight  could  not  tell ;  and  that  unlimited  power,  where- 
ever  lodged  at  such  a  time,  was  especially  hazardous  to  freemen. 
For  this,  and  other  equally  weighty  reasons,  they  secured  the  in- 
heritance they  had  fought  to  maintain,  by  incorporating  in  a 
written  constitution  the  safeguards  which  time  had  proved  were 
essential  to  its  preservation.  Not  one  of  these  safeguards  can 
the  President,  or  Congress,  or  the  Judiciary  disturb,  except  the 
one  concerning  the  writ  of  habeas  corpus.  .  .  . 

It  will  be  borne  in  mind  that  this  is  not  a  question  of  the  power 
to  proclaim  martial  law,  when  war  exists  in  a  community  and  the 
courts  and  civil  authorities  are  overthrown.  Nor  is  it  a  question 
what  rule  a  military  commander,  at  the  head  of  his  army,  can 
impose  on  States  in  rebellion  to  cripple  their  resources  and  quell 
the  insurrection.  The  jurisdiction  claimed  is  much  more  exten- 
sive. The  necessities  of  the  service,  during  the  late  Rebellion, 
required  that  the  loyal  States  should  be  placed  within  the  limits 
of  certain  military  districts  and  commanders  appointed  in  them; 
and  it  is  urged  that  this,  in  a  military  sense,  constituted  them 
the  theatre  of  mihtary  operations;  and,  as  in  this  case,  Indiana 
had  been  and  was  again  threatened  with  invasion  by  the  enemy, 
the  occasion  was  furnished  to  establish  martial  law.  The  conclu- 
sion does  not  follow  from  the  premises.  If  armies  were  collected 
in  Indiana,  they  were  to  be  employed  in  another  locality,  where 
the  laws  were  obstructed  and  the  national  authority  disputed. 
On  her  soil  there  was  no  hostile  foot ;  if  once  invaded,  that  invasion 
was  at  an  end,  and  with  it  all  pretext  for  martial  law.  Martial 
law  cp),nnot  rise  from  a  threatened  invasion.  Thenecessitvmust_ 
be  actual  and  present;  the  invasion  ivai,  sTIch  as  effectually  closes 
the  courts  and  deposes  the  civil  administration.  .  , 


Ex  parte  milligan.  63 

From  the  first  year  of  the  reign  of  Edward  the  Third,  when  the 
Parliament  of  England  reversed  the  attainder  of  the  Earl  of  Lan- 
caster, because  he  could  have  been  tried  by  the  courts  of  the  realm, 
and  declared,  "  that  in  time  of  peace  no  man  ought  to  be  adjudged 
to  death  for  treason  or  any  other  offence  without  being  arraigned 
and  held  to  answer;  and  that  regularly  when  the  king's  courts 
are  open  it  is  a  time  of  peace  in  judgment  of  law,"  down  to  the 
present  day,  martial  law,  as  claimed  in  this  case,  has  been  con- 
demned by  all  respectable  English  jurists  as  contrary  to  the 
fundamental  laws  of  the  land,  and  subversive  of  the  liberty  of  the 
subject.  .  .  . 

To  the  third  question,  then,  on  which  the  judges  below  were 
opposed  in  opinion,  an  answer  in  the  negative  must  be  re- 
turned. .  .  . 

The  two  remaining  questions  in  this  case  must  be  answered  in 
the  affirmative.  .  .  . 

Chase,  C.  J.,  delivered  the  following  opinion. 

Four  members  of  the  court,  concurring  with  their  brethren  in 
the  order  heretofore  made  in  this  cause,  but  unable  to  concur  in 
some  important  particulars  with  the  opinion  which  has  just  been 
read,  think  it  their  duty  to  make  a  separate  statement  of  their 
views  of  the  whole  case.  .  .  . 

The  first  two  questions  certified  must  receive  affirmative  an- 
swers, and  the  last  a  negative.  We  do  not  doubt  that  the  positive 
provisions  of  the  act  of  Congress  require  such  answers.  We  do 
not  think  it  necessary  to  look  beyond  these  provisions.  In  them 
we  find  sufficient  and  controlling  reasons  for  our  conclusions. 

But  the  opinion  which  has  just  been  read  goes  further;  and 
,  as  we  understand  it,  asserts  not  only  that  the  military  commission 
held  in  Indiana  was  not  authorized  by  Congress,  but  that  it  was_ 
not  in  the  power  of  Congress  to  authorize  it;  from  which  it  may 
be  thought  to  tollow  that  Congress  has  no  power  to  inclemnity 
the  officers  who  composed  the  commission  against  liabilitv  in  civnl 
courts  for  acting  as  members  ot  it. 

We  cannot  agree  to  this. 

We  agree  in  the  proposition  that  no  department  of  the  govern- 
ment of  the  United  States  —  neither  President,  nor  Congress, 
nor  the  courts  —  possesses  any  power  not  given  by  the  Constitu- 
tion. .  .  . 

We  think  that  Congress  had  power,  though  not  exercised,  to 
authorize  the  mihtary  commission  which  was  held  in  Indiana.,.  .T 


64  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS.  ■ 

The  Constitution  itself  provides  for  military  government  as 
well  as  for  civil  government.  And  we  do  not  understand  it  to  be 
claimed  that  the  civil  safeguards  of  the  Constitution  have  appli- 
cation in  cases  within  the  proper  sphere  of  the  former. 

What,  then,  is  that  proper  sphere  ?  Congress  has  power  to 
raise  and  support  armies;  to  provide  and  maintain  a  navy;  to 
make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces;  and  to  provide  for  governing  such  part  of  the  militia 
as  may  be  in  the  service  of  the  United  States.  .  .  . 

But  we  do  not  put  our  opinion,  that  Congress  might  authorize 
such  a  military  commission  as  was  held  in  Indiana,  upon  the 
power  to  provide  for  the  government  of  the  national  forces. 

Congress  has  the  power  not  only  to  raise  and  support  and  govern 
armies  but  to  declare  war.  It  has,  therefore,  the  power  to  provide 
by  law  for  carr3'ing  on  war.  This  power  pecessarily  extends  to 
^^1  ]pp;islntin]^  essential  to  the  Drosecution  of  war  with  vigor  and 
fii]l^pp<<,  pvr'npt  such  as  interferes  with  the  command  of  the  forces 
and  the  conduct  of  campaigns.  That  power  and  duty  belong  to 
the  President  as  commander-m-chief.  Both  these  powers  are 
deri_ved  from  theConstitution,  but  neither  is  dc^hui^d  bv  that 
inst.rin-|yMit  Their  extent  must  be  determined  by  their  nature, 
and  by  the  principles  of  our  institutions. 

The  power  to  make  the  necessary  laws  is  in  Congress;  the  power 
to  execute  in  the  President.  Both  powers  imply  many  subordinate 
and  auxiliary  powers.  Each  includes  all  authorities  essential  to 
its  due  exercise.  But  neither  can  the  President,  in  war  more  than 
in  peace,  intrude  upon  the  proper  authority  of  Congress,  nor  Con- 
gress upon  the  proper  authority  of  the  President.  Both  are 
servants  of  the  people,  whose  will  is  expressed  in  the  fundamental 
law.  Congress  cannot  direct  the  conduct  of  campaigns,  nor  can 
the  President,  or  any  commander  under  him,  without  the  sanction 
of  Congress,  institute  tribunals  for  the  trial  and  punishment  of 
offences,  either  of  soldiers  or  civilians,  unless  in  cases  of  a  con- 
trolling necessity,  which  justifies  what  it  compels,  or  at  least 
insures  acts  of  indemnity  from  the  justice  of  the  legislature. 

We  by  no  means  assert  that  Congress  can  establish  and  apply 
the  laws  of  war  where  no  war  has  been  declared  or  exists. 

Where  peace  exists  the  laws  of  peace  must  prevail.     What  we 

do  maintain  is,  that  when  the  nation  is  involved  in  war,  and  some 

"portions  of  the  country  are  invaded,  and  all  are  exposed  to  inva^ 

sion,  it  is  within  the  power  of  Congress  to  determine  in  what  States 


Ex  parte  milligax. 


65 


or  chstricts  such,great_and  imminent  public  danger  exist,  n.  jn.. 

_tifaes  the  authorization  Qf  militnry  tjjbunals  for  the  trial  of  crimes 

and  offences  a,g;iinst,  the  di^dEJiiLe  or  security  of  thp  army  or 

against  the  public  safety.  .  .  .  

We  haye  confined  ourselyes  to  the  question  of  power.  It  was 
for  Congress  to  determine  the  question  of  expediency  And 
Congress  did  determine  it.  That  body  did  not  see  fit  to  authorize 
trials  by  military  commission  in  Indiana,  but  by  the  strongest 
implication  prohibited  them.  .  .  . 

There  are  under  the  Constitution  three  kinds  of  military  juris- 
^'''*'«^'  one  to  be  ex(Tci.sod  both  in  peace  and  war:  another  to  be 
exercised  in  time  of  fonM?^n  \var  without,  thlUxmndarios  of  the 
^Imtrd  ^tM.ti;s,^orMntiimM)f  rebellion  and  cjyil  w.jt  within  j^tnt^^ 
_or^i.stricts  occui)!^  by  rebels  tr.>ated  as  belli^eronts^^  5,nrl  JTTCi 
to  '^c  exercised  in  time  oMmasion  or  insurrection  withhTthT 
liTmts  or  ine..Lmt.-d  St^ite^s^oTchlH^^  wjtlijn  the  limits 

of  >stfltes  maintaining  adhe;:i7;irto  the  Aational  (;()vernm(>nt.  when 
Jhe.public  (lanj^er  rft|iiin-s  its  eygvkg^  The  first  of  these  may  be 
called  jurisdiction  under  military  law,  and  is  found  in  acts  of 
Congress  prescribing  rules  and  articles  of  war,  or  other;\nse  pro- 
viding for  the  goyernment  of  the  national  forces;  the  second  may 
be   distinguished  as  military  GoyER.VMEXT,  superseding,  as  far 
^_asmay  be  deenifd  PYpe.lieul^^heJocanaus  and  exercli^d  by  the~ 
jmlltary  con^ui:miliTjmdeM:h7^n^^  ^.jtbT 

Jbcexpi-c.irt  or  itupliedja^tg^i  of  Congress;  while  the  third  may 
Jjc  denominated  MARTIAL  law  proper,  and  is  called  into  action 
byTongress,  or  Temporarily,  wiien  the  action  of  Congress  cann^ 
be  inyited,  and  in  tlTT^ase  of  justifying  or  excusing  neril,  hvTI^ 
President,  in  times  oFJnsurrection  or  inyasion,  or  of  ciyjl  or  foreign 
,war^within  districtsl^rbcalities  where  ordinary  law  no  longer 
adequately  secures  pui)lic  safety  and  priyate  rights. 

We  think  that  the  power  of  Congress,  in  such  times  and  in  such 
localities,  to  authorize  trials  for  crimes  against  the  security  and 
safety  of  the  national  forces,  may  be  derived  from  its  constitutional 
authority  to  raise  and  support  armies  and  to  declare  war,  if  not 
from  its  constitutional  authority  to  provide  for  governing  the 
national  forces. 

We  have  no  apprehension  that  this  power,  under  our  American 
system  of  government,  in  which  all  official  authority  is  deriyed 
from  the  people,  and  exercised  under  direct  responsibility  to  the 
people,  is  more  likely  to  be  abused  than  the  power  to  regulate 
commerce,  or  the  power  to  borrow  money.     And  we  are  unwilhng 


66  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

to  give  our  assent  by  silence  to  expressions  of  opinion  which  seem 
to  us  calculated,  though  not  intended,  to  cripple  the  constitutional 
powers  of  the  government,  and  to  augment  the  public  dangers  in 
times  of  invasion  and  rebellion. 

Mr.  Justice  Wayne,  Mr.  Justice  Swayne,   and  Mr.   Justice 
Miller,  concur  with  me  in  these  views.^ 


MISSISSIPPI   V.   JOHNSON. 
Supreme  Court  of  the  United  States.     1867. 

[4  Wallace,  475.) 

This  was  a  motion  made  by  Messrs.  Sharkey  and  R.  J.  Walker, 
on  behalf  of  the  State  of  Mississippi,  for  leave  to  file  a  bill  in  the 
name  of  the  State  praying  this  court  perpetually  to  enjoin  and 
restrain  Andrew  Johnson,  a  citizen  of  the  State  of  Tennessee  and 
President  of  the  United  States,  and  his  officers  and  agents  appointed 
for  that  purpose,  and  especially  E.  O.  C.  Ord,  assigned  as  military 
commander  of  the  district  where  the  State  of  Mississippi  is,  from 
executing  or  in  any  manner  carrying  out  two  acts  of  Congress 
named  in  the  bill,  one  "  An  act  for  the  more  efficient  government 
of  the  rebel  States,"  passed  March  2d,  1867,  notwithstanding  the 
President's  veto  of  it  as  unconstitutional,  and  the  other  an  act 
supplementary  to  it,  passed  in  the  same  way  March  23d,  1867; 
acts  commonly  called  the  Reconstruction  Acts. 

The  former  of  these  acts,  reciting  that  no  legal  State  govern- 
ments or  adequate  protection  for  life  or  property  now  exists  in 
the  rebel  States  of  Virginia,  North  Carolina,  South  Carohna, 
Georgia,  Mississippi,  Alabama,  Louisiana,  Florida,  Texas,  and 
Arkansas,  and  that  it  was  necessary  that  peace  and  good  order 
should  be  enforced  in  them  until  loyal  and  republican  State  gov- 
ernments, could  be  legally  established,  divided  the  States  named 
into  five  military  districts,  and  made  it  the  duty  of  the  President 
to  assign  to  each  one  an  officer  of  the  army,  and  to  detail  a  suffi- 
cient military  force  to  enable  him  to  perform  his  duties  and  enforce 

1  On  courts  martial,  see  Dynes  v.  Hoover,  20  How.  65  (1857),  and  Carter 
V.  McClaughry,  183  U.  S.  365  (1902).  —  Ed. 


MISSISSIPPI    V.    JOHNSON.  67 

his  authority  within  his  district.  It  made  it  the  duty  of  this 
officer  to  protect  all  persons  in  their  rights,  to  suppress  insurrec- 
tion, disorder,  violence,  and  to  punish,  or  cause  to  be  punished, 
all  disturbers  of  the  public  peace  and  criminals,  either  through 
the  local  civil  tribunals  or  through  military  commissions,  which  the 
act  authorized.  It  provided,  further,  that  on  the  formation  of 
new  constitutions  and  certain  conditions  which  the  act  prescribed, 
the  States  respectively  should  be  declared  entitled  to  represen- 
tation in  Congress  and  the  preceding  part  of  the  act  become 
inoperative;  and  that  until  they  were  so-  admitted  any  civil 
governments  which  might  exist  in  them  should  be  deemed  pro- 
visional only,  and  subject  to  the  paramount  authority  of  the 
United  States,  at  any  time  to  abolish,  modify,  control,  or  super- 
sede it. 

The  second  of  the  two  acts  relatetl  chiefly  to  the  registration 
of  voters  who  were  to  form  the  new  constitutions  of  the  States  in 
question. 

The  bill  set  out  the  political  history  of  Mississippi  so  far  as 
related  to  its  having  l)ecome  one  of  the  United  States;  and  "  that 
forever  after  it  was  impossible  for  her  people,  or  for  the  State  in 
its  corporate  capacity,  to  dissolve  that  connection  with  the  other 
States,  and  that  any  attempt  to  do  so  by  secession  or  otherwise  was 
a  nullity;  "  and  she  "  now  solemnly  asserted  that  her  connection 
with  the  federal  go\-ernment  was  not  in  any  wise  thereby  destroyed 
or  impaired;  "  and  she  averred  and  charged  "  that  the  Congress 
of  the  United  States  cannot  constitutionally  expel  her  from  the 
Union,  and  that  any  attempt  which  practically  does  so  is  a  nullity." 

The  bill  then  went  on :  — 

"  The  acts  in  question  annihilate  the  State  and  its  government, 
by  assuming  for  Congress  the  power  to  control,  modify,  and  even 
abolish  its  government  — in  short,  to  exert  sovereign  power  over 
it  —  and  the  utter  destruction  of  the  State  must  be  the  consequence 
of  their  execution.  They  also  violate  a  well  kno;vn  salutary 
prmciple  in  governments,  the  observance  of  which  can  alone 
preserve  them,  by  making  the  civil  power  subordinate  to  the 
mihtary  power,  and  thus  establish  a  military  rule  over  the  States 
enumerated  in  the  act,  and  make  a  precedent  by  which  the  govern- 
ment of  the  United  States  may  be  converted  into  a  military  des- 
potism, in  which  every  man  may  be  deprived  of  his  goods,  lands, 
liberty,  and  hfe,  by  the  breath  of  a  military  commander,'  or  the 
sentence  of  the  military  commission  or  tribunal,   without  the 


68  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

benefit  of  trial  ])y  jury,  and  without  the  observance  of  any  of  those 
requirements  and  guarantees  by  which  the  Constitution  and  laws 
so  plainly  protect  and  guard  the  rights  of  the  citizen.  And  the 
more  effectually  to  accomplish  this  purpose  the  said  acts  divide 
the  ten  southern  States  into  five  military  districts,  and  make  it 
the  duty  of  the  President  to  assign  an  officer  to  the  command  of 
each  district,  and  to  place  a  sufficient  force  under  him,  whose  will 
is  to  be  the  law  and  his  soldiers  the  power  that  executes  it.  It  is 
declared  to  be  his  duty  to  protect  all  persons  in  their  rights  of 
person  and  property;  to  suppress  insurrections,  disorder,  and 
violence;  and  to  punish,  or  cause  to  be  punished,  all  disturbers 
of  the  peace  and  criminals;  and  he  may  organize  military  com- 
missions and  tribunals  to  try  offenders  when  he  may  think  proper. 
But,  by  what  rule  or  law  is  he  to  judge  of  the  rights  of  person  or 
property  ?  By  what  rule  or  law  is  he  to  arrest,  try,  and  punish 
criminals  ?  By  what  rule  or  law  is  he  to  judge  whether  they 
have  committed  crimes  ?  The  answer  to  these  questions  is  plain, 
—  by  his  own  will;  for,  though  he  may  adopt  the  State  authori- 
ties as  his  instruments  if  he  will,  yet  he  may  reject  them  if  he  will. 
A  scope  of  power  so  broad,  so  comprehensive,  was  never  before 
vested  in  a  military  commander  in  any  government  which  guards 
the  rights  of  its  citizens  or  sul)jects  by  law.  It  embraces  necessarily 
all  those  subjects  over  which  the  States  reserved  the  power  to 
legislate  for  themselves,  as  essential  to  their  existence  as  States, 
including  the  domestic  relations,  all  the  rights  of  property,  real 
and  personal;  the  rights  of  personal  security  and  personal  liberty; 
and  assumes  the  right  to  control  the  whole  of  the  domestic  con- 
cerns of  the  State.  These  acts  also  provide  that  the  governments 
now  existing  in  the  southern  States  are  but  provisional  govern- 
ments, subject  to  the  paramount  authority  of  Congress,  which 
may  at  any  time  abolish,  modify,  control,  or  supersede  them." 

It  then  charged  that,  from  information  and  belief,  the  said 
Andrew  Johnson,  President,  in  violation  of  the  Constitution, 
and  in  violation  of  the  sacred  rights  of  the  States,  would  proceed, 
notwithstanding  his  vetoes,  and  as  a  mere  ministerial  duty,  to  the 
execution  of  said  acts,  as  though  they  were  the  law  of  the  land, 
which  the  vetoes  prove  he  would  not  do  if  he  had  any  discretion, 
or  that  in  doing  so,  he  performed  anything  more  than  a  mere 
ministerial  duty;  and  that  with  the  view  to  the  execution  of  said 
acts  he  had  assigned  General  E.  O.  C.  Ord  to  the  command  of  the 
States  of  Mississippi  and  Arkansas. 


MISSISSIPPI    V.    JOHNSON.  69 

Upon  an  intimation  made  a  few  days  before  by  Mr.  Sharkey, 
of  his  desire  to  file  the  bill,  the  Attorney  General  objected  to  it 
in  limme,  as  containing  matter  not  fit  to  be  received.  The  Chief 
Justice  then  stated  that  while,  as  a  general  thing,  a  motion  to  file 
a  bill  was  granted  as  of  course,  yet  if  it  was  suggested  that  the 
bill  contained  scandalous  or  impertinent  matter,  or  was  in  other 
respects  improper  to  be  received,  the  court  would  either  examine 
the  bill  or  refer  it  to  a  master  for  examination.  The  only  matter, 
therefore,  which  would  now  be  considered  was  the  question  of 
leave  to  file  the  bill. 

Sharkey,  R.  J.  Walker,  and  Garland,  by  briefs  filed,  for  the 
motion.     Stanbery,  A.  G.,  contra. 

Chase,  C.  J.,  delivered  the  opinion  of  the  court. 

A  motion  was  made,  some  days  since,  in  behalf  of  the  State  of 
Mississippi,  for  leave  to  file  a  bill  in  the  name  of  the  State,  praying 
this  court  perpetually  to  enjoin  and  restrain  Andrew  Johnson, 
President  of  the  United  States,  and  E.  O.  C.  Orel,  general  com- 
manding in  the  District  of  Mississippi  and  Arkansas,  from  execut- 
ing, or  in  any  manner  carrj-ing  out,  certain  acts  of  Congress  therein 
named. 

The  acts  referred  to  are  those  of  March  2d  and  March  23d,  1867, 
commonly  known  as  the  Reconstruction  Acts. 

The  Attorney  General  objected  to  the  leave  asked  for,  upon 
the  ground  that  no  bill  which  makes  a  President  a  defendant, 
and  seeks  an  injunction  against  him  to  restrain  the  performance 
of  his  duties  as  President,  should  be  allowed  to  be  filed  in  this 
court. 

This  point  has  been  fully  argued,  and  we  will  now  dispose  of  it. 

We  shall  Umit  our  inquiry  to  the  question  presented  by  the 
objection,  without  expressing  any  opinion  on  the  broader  issues 
discussed  in  argument,  whether,  in  any  case,  the  President  of  the 
United  States  may  be  required,  by  the  process  of  this  court,  to 
perform  a  purely  ministerial  act  under  a  positive  law,  or  may  be 
held  amenable,  in  any  case,  otherwise  than  by  impeachment  for 
crime. 

The  single  point  which  requires  consideration  is  this:  Can  the 
President  be  restrained  by  injunction  from  carrying  into  effect 
an  act  of  Congress  alleged  to  be  unconstitutional  ? 

It  is  assumed  by  the  counsel  for  the  State  of  Mississippi,  that 
the  President,  in  the  execution  of  the  Reconstruction  Acts,  is 
required  to  perform  a  mere  ministerial  duty.  In  this  assumption 
there  is,  we  think,  a  confounding  of  the  terms  ministerial  and 
executive,  which  are  by  no  means  equivalent  in  import. 


70  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

A  ministerial  duty,  the  performance  of  which  may,  in  proper 
cases,  be  required  of  the  head  of  a  department,  by  judicial  proc- 
ess, is  one  in  respect  to  which  nothing  is  left  to  discretion.  It  is 
a  simple,  definite  duty,  arising  under  conditions  admitted  or  proved 
to  exist,  and  imposed  by  law.  .  .  .^ 

Very  different  is  the  duty  of  the  President  in  the  exercise  of  the 
power  to  see  that  the  laws  are  faithfully  executed,  and  among 
these  laws  the  acts  named  in  the  bill.  By  the  first  of  these  acts 
he  is  required  to  assign  generals  to  command  in  the  several  military 
districts,  and  to  detail  sufficient  military  force  to  enable  such 
officers  to  discharge  their  duties  under  the  law.  By  the  supple- 
mentary act,  other  duties  are  imposed  on  the  several  command- 
ing generals,  and  these  duties  must  necessarily  be  performed  under 
the  supervision  of  the  President  as  commander-in-chief.  The 
duty  thus  imposed  on  the  President  is  in  no  just  sense  ministerial. 
It  is  purely  executive  and  political. 

An  attempt  on  the  part  of  the  judicial  department  of  the  gov- 
ernment to  enforce  the  performance  of  such  duties  by  the  President 
might  be  justly  characterized,  in  the  language  of  Chief  Justice 
Marshall,  as  "  an  absurd  and  excessive  extravagance." 

It  is  true  that  in  the  instance  before  us  the  interposition  of  the 
court  is  not  sought  to  enforce  action  by  the  Executive  under  con- 
stitutional legislation,  but  to  restrain  such  action  under  legisla- 
tion alleged  to  be  unconstitutional.  But  we  are  unable  to  perceive 
that  this  circumstance  takes  the  case  out  of  the  general  principles 
which  forbid  judicial  interference  with  the  exercise  of  Executive 
discretion. 

It  was  admitted  in  the  argument  that  the  apphcation  now 
made  to  us  is  without  a  precedent;  and  this  is  of  much  weight 
against  it.  .  .  . 

The  fact  that  no  such  application  was  ever  before  made  in  any 
case  indicates  the  general  judgment  of  the  profession  that  no  such 
application  should  be  entertained. 

It  will  hardly  be  contended  that  [the  court]  ^  can  interpose,  in  any 
case,  to  restrain  the  enactment  of  an  unconstitutional  law;  and 
yet  how  can  the  right  to  judicial  interposition  to  prevent  such  an 
enactment,  when  the  purpose  is  evident  and  the  execution  of  that 
purpose  certain,  be  distinguished,  in  principle,  from  the  right  to 

1  Here  were  cited  Marbury  v.  Madison,  ante,  p.  23  (1803),  and  Kendall  v. 
Stockton,  ante,  p.  42  (1838).  —  Ed. 

2  The  original  report  erroneously  says  "  Congress."  —  Ed. 


MISSISSIPPI   V.    JOHNSON.  71 

such  interposition  against  the  execution  of  such  a  law  In-  the 
President  ? 

The  Congress  is  the  legislative  department  of  the  government; 
the  President  is  the  executive  department.  Neither  can  be 
restrained  in  its  action  by  the  judicial  department;  though  the 
acts  of  both,  when  performed,  are,  in  proper  cases,  subject  to  its 
cognizance. 

The  impropriety  of  such  interference  Avill  be  clearly  seen  upon 
consideration  of  its  possible  consequences. 

Suppose  the  bill  filed  and  the  injunction  prayed  for  allowed. 
If  the  President  refuse  obedience,  it  is  needless  to  observe  that 
the  court  is  without  power  to  enforce  its  process.  If,  on  the  other 
hand,  the  President  complies  ^^^th  the  order  of  the  court  and  re- 
fuses to  execute  the  acts  of  Congress,  is  it  not  clear  that  a  collision 
may  occur  between  the  executive  and  legislative  departments  of 
the  government  ?  May  not  the  House  of  Representatives  im- 
peach the  President  for  such  refusal  ?  And  in  that  case  could  this 
court  interfere,  in  behalf  of  the  President,  thus  endangered  by 
compliance  with  its  mandate,  and  restrain  by  injunction  the  Senate 
of  the  United  States  from  sitting  as  a  court  of  impeachment  ? 
Would  the  strange  spectacle  be  offered  to  the  pubhc  world  of  an 
attempt  by  this  court  to  arrest  proceedings  in  that  court  ? 

These  questions  answer  themselves.  .  .  . 

It  has  been  suggested  that  the  bill  contains  a  prayer  that,  if 
the  relief  sought  cannot  be  had  against  Andrew  Johnson,  as  Presi- 
dent, it  may  be  granted  against  Andrew  Johnson  as  a  citizen  of 
Tennessee.  But  it  is  plain  that  relief  as  against  the  execution  of 
an  act  of  Congress  by  Andrew  Johnson  is  relief  against  its  execu- 
tion by  the  President.  A  bill  praying  an  injunction  against  the 
execution  of  an  act  of  Congress  by  the  incumbent  of  the  presiden- 
tial office  cannot  be  received,  whether  it  describes  him  as  Presi- 
dent or  as  a  citizen  of  a  State. 

The  motion  for  leave  to  file  the  bill  is,  therefore. 

Denied.^ 
^  In  Georgia  v.  Stanton,  6  Wall.  50  (1867),  Georgia  invoked  the  original 
jurisdiction  of  the  Supreme  Court  of  the  United  States  against  the  Secre- 
tarj'  of  War,  the  General  of  the  Army,  and  the  Major  General  assigned 
to  the  Third  Militarj-  District,  comprising  Georgia,  Florida,  and  Alabama, 
to  restrain  the  defendants  from  executing  the  same  Reconstruction  Acts! 
The  bill  was  dismissed  for  want  of  jurisdiction,  Xelso.v,  J.,  for  the  court, 
saying: — 

"  That  these  matters,  both  as  stated  in  the  body  of  the  bill,  and  in  the 
prayers  for  relief,  call  for  the  judgment  of  the  court  upon  poUtical  questions, 


72  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

KILBOURN  V.  THOMPSON. 
Supreme  Court  of  the  United  States.     1880. 

[103  Uniled  States,  168.]  i 

Error  to  the  Supreme  Court  of  the  District  of  Columbia. 

This  was  an  action  for  false  imprisonment,  brought  against  the 
Sergeant-at-arms  of  the  House  of  Representatives,  the  Speaker, 
and  members  of  a  special  committee  which  a  resolution  of  the 
House  had  instructed  to  inquire  into  the  history  of  a  certain  real 
estate  pool.  The  preamble  of  the  resolution  recited  that  the 
firm  of  Jay  Cooke  &  Co.  was  indebted  to  the  United  States  and  had 
been  adjudged  bankrupt  by  the  United  States  District  Court  for 
the  Eastern  District  of  Pennsylvania,  that  the  firm  had  been 
interested  in  the  pool,  that  the  trustee  in  bankruptcy  had  made 
a  settlement  of  that  interest,  that  the  settlement  was  apparently 

and  upon  rights,  not  of  persons  or  property,  but  of  a  political  character,  will 
hardly  be  denied.  For  the  rights  for  the  protection  of  which  our  authority 
is  invoked  are  the  rights  of  sovereignty,  of  political  jurisdiction,  of  govern- 
ment, of  corporate  existence  as  a  State,  with  all  its  constitutional  powers  and 
privileges.  No  case  of  private  rights  or  private  property  infringed,  or  in 
danger  of  actual  or  threatened  infringement,  is  presented  by  the  bill,  in  a 
judicial  form,  for  the  judgment  of  the  court. 

"  It  is  true,  the  bill,  in  setting  forth  the  political  rights  of  the  State,  and  of 
its  people,  to  be  protected,  among  other  matters,  avers,  that  Georgia  owns 
certain  real  estate  and  buildings  therein.  State  capitol,  and  executive  mansion, 
and  other  real  and  personal  property;  and  that  putting  the  acts  of  Congress 
into  execution,  and  destroying  the  State,  would  deprive  it  of  the  possession 
and  enjoyment  of  its  property.  But  it  is  apparent  that  this  reference  to 
property  and  statement  concerning  it  are  only  by  way  of  showing  one  of  the 
grievances  resulting  from  the  threatened  destruction  of  the  State,  and  in 
aggravation  of  it,  not  as  a  specific  ground  of  relief.  This  matter  of  property 
is  neither  stated  as  an  independent  ground,  nor  is  it  noticed  at  all  in  the  prayers 
for  relief.  Indeed  the  case,  as  made  in  the  bill,  would  have  stopped  far  short 
of  the  relief  sought  by  the  State,  and  its  main  purpose  and  design  given  up, 
by  restraining  its  remedial  effect,  simply  to  the  protection  of  the  title  and 
possession  of  its  property.  Such  relief  would  have  called  for  a  very  different 
bill  from  the  one  before  us. 

"  Having  arrived  at  the  conclusion  that  this  court,  for  the  reasons  above 
stated,  possesses  no  jurisdiction  over  the  subject-matter  presented  in  the  bill 
for  relief,  it  is  unimportant  to  examine  the  question  as  it  respects  jurisdiction 
over  the  parties  defendants." 

And  Chase,  C.  J.,  said:  "  Without  being  able  to  yield  my  assent  to  the 
grounds  stated  in  the  opinion  just  read  for  the  dismissal  of  the  complainant's 
bill,  I  concur  fuUy  in  the  conclusion  that  the  case  made  by  the  bill  is  one  of 
which  this  court  has  no  jurisdiction."  —  Ed. 

'  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


KILBOURN    V.    THOMPSON.  73 

disadvantageous  to  the  creditors,  and  that  the  courts  Avere  now 
powerless  to  afford  rehef.  The  committee  caused  to  be  issued  by 
the  Speaker  a  subpoena  duces  tecum  to  the  plaintiff,  and  upon  the 
plaintiff's  appearing  as  a  witness  and  refusing  to  answer  a  certain 
question  and  to  produce  certain  papers,  the  question  and  the  papers 
being  pertinent  to  the  inquiry,  the  committee  reported  to  the 
House  that  he  was  guilty  of  a  contempt.  Thereupon  the  House 
resolved  —  the  defendant  committee-men  voting  for  the  resolu- 
tion —  that  the  Speaker  issue  his  warrant  directing  the  Sergeant- 
at-arms  to  take  the  plaintiff  into  custody  and  to  bring  him  to  the 
bar  of  the  House  to  answer  why  he  should  not  be  punished.  The 
warrant  was  issued;  and  then  the  plaintiff,  having  been  arrested 
by  the  Sergeant-at-arms  and  conveyed  to  the  bar  of  the  House, 
still  refused  to  answer  the  question  and  also  to  produce  the 
papers.  Thereupon  it  was  resolved  by  the  House  —  the  defend- 
ant committee-men  voting  for  the  resolution  —  that  the  plaintiff 
was  in  contempt  and  that  until  he  should  purge  himself  of  his 
contempt  by  obeying  the  subpoena  duces  tecum  and  answering  the 
question  he  should  be  kept  by  the  Sergeant-at-arms  in  the  com- 
mon jail  of  the  District  of  Columbia.  Thereupon  the  Speaker 
issued  a  warrant  in  accordance  with  the  resolution,  and  the  Ser- 
geant-at-arms kept  the  plaintiff  in  custody  in  accordance  with  its 
terms  until  the  Sergeant-at-arms,  in  response  to  a  writ  of  habeas 
corpus  issued  by  order  of  the  Chief  Justice  of  the  Supreme  Court 
of  the  District  of  Columbia,  delivered  the  plaintiff  to  the  Marshal 
for  the  District  of  Columbia.  Congress  was  in  session  throughout 
the  whole  time.  The  false  imprisonment  alleged  in  the  present 
action  was  that  the  defendants  took  the  plaintiff  from  his  house 
and  confined  him  in  the  common  jail  for  forty-five  days.  The 
Speaker  died  before  process  was  served.  The  Sergeant-at-arms 
and  the  other  defendants  pleaded  the  general  issue  and  also  spe- 
cial pleas  setting  forth  the  facts.  The  plaintiff  demurred  to  the 
special  pleas;  and,  the  demurrer  having  been  overruled  and  judg- 
ment rendered  for  the  defendants,  the  plaintiff  sued  out  this  writ 
of  error. 

Charles  A.  Eldredge,  Enoch  Toiten,  and  Noah  L.  Jeffries,  for 
plaintiff  in  error.     Walter  H.  Smith  and  Frank  H.  Hurd,  contra. 

Miller,  J.,  .  .  .  dehvered  the  opinion  of  the  court.  .  .  . 

The  powers  of  Congress  itself,  when  acting  through  the  concur- 
rence of  both  branches,  are  dependent  solely  on  the  Constitution. 
Such  as  are  not  conferred  by  that  instrument,  either  expressly 
or  by  fair  implication  from  what  is  granted,  are  "  reserved  to 


74  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

the  States  respectively,  or  to  the  people."  Of  course,  neither 
branch  of  Congress,  when  acting  separately,  can  lawfully  exercise 
more  power  than  is  conferred  by  the  Constitution  on  the  whole 
body,  except  in  the  few  instances  where  authority  is  conferred 
on  either  House  separately,  as  in  the  case  of  impeachments.  No 
general  power  of  inflicting  punishment  by  the  Congress  of  the 
United  States  is  found  in  that  instrument.  It  contains  in  the  pro- 
vision that  no  "person  shall  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law,"  the  strongest  implication  against  pun- 
ishment by  order  of  the  legislative  bod}'.  .  .  .  That  instrument, 
however,  is  not  wholly  silent  as  to  the  authority  of  the  separate 
branches  of  Congress  to  inflict  punishment.  It  authorizes  each 
House  to  punish  its  own  members.  By  the  second  clause  of  the 
fifth  section  of  the  first  article,  "  Each  House  may  determine 
the  rules  of  its  proceedings,  punish  its  members  for  disorderly 
behavior,  and,  with  the  concurrence  of  two-thirds,  expel  a  mem- 
ber," and,  by  the  clause  immediately  preceding,  it  "  may  be 
authorized  to  compel  the  attendance  of  absent  members,  in  such 
manner  and  under  such  penalties  as  each  House  may  provide." 
These  provisions  are  equally  instructive  in  what  they  authorize 
and  in  what  they  do  not  authorize.  There  is  no  express  power 
in  that  instrument  conferred  on  either  House  of  Congress  to  punish 
for  contempts. 

The  advocates  of  this  power  have,  therefore,  resorted  to  an 
implication  of  its  existence,  founded  on  two  principal  arguments. 
These  are,  1,  its  exercise  by  the  House  of  Commons  of  England, 
from  which  country  we,  it  is  said,  have  derived  our  system  of 
parliamentary  law;  and,  2d,  the  necessity  of  such  a  power  to 
enable  the  two  Houses  of  Congress  to  perform  the  duties  and 
exercise  the  powers  which  the  Constitution  has  conferred  on 
them.  .  .  . 

It  is  important,  however,  to  understand  on  Avhat  principle  this 
power  in  the  House  of  Commons  rests,  that  we  may  see  whether 
it  is  applicable  to  the  two  Houses  of  Congress,  and,  if  it  be,  whether 
there  are  limitations  to  its  exercise. 

While  there  is,  in  the  adjudged  cases  in  the  Enghsh  courts, 
little  agreement  of  opinion  as  to  the  extent  of  this  power,  and  the 
liability  of  its  exercise  to  be  inquired  into  by  the  courts,  there  is 
no- difference  of  opinion  as  to  its  origin.  This  goes  back  to  the 
period  when  the  bishops,  the  lords,  and  the  knights  and  burgesses 
met  in  one  body,  and  were,  when  so  assembled,  called  the  High 
Court  of  Parliament. 


KILBOURX    V.    THOMPSON.  75 

They  were  not  only  called  so,  but  the  assembled  Parliament 
exercised  the  highest  functions  of  a  court  of  judicature,  repre- 
senting m  that  respect  the  judicial  authority  of  the  king  in  his 
Court  of  Parliament.  While  this  body  enacted  laws,  it  also 
rendered  judgments  in  matters  of  private  right,  which,  when 
approved  by  the  king,  were  recognized  as  valid. 

It  is  upon  this  idea  that  the  two  Houses  of  Parhament  were 
each  courts  of  judicature  originally,  which,  though  divested  by 
usage,  and  by  statute,  probably,  of  many  of  their  judicial  func- 
tions, have  yet  retained  so  much  of  that  power  as  enables  them 
like  any  other  court,  to  punish  for  a  contempt  of  these  privileges 
and  authority  that  the  power  rests. 

We  are  of  opinion  that  the  right  of  the  House  of  Representatives 
to  pumsh  the  Citizen  for  a  contempt  of  its  authority  or  a  breach 
of  Its  privileges  can  derive  no  support  from  the  precedents  and 
practices  of  the  two  Houses  of  the  English  Parliament,  nor  from 
the  adjudged  cases  in  which  the  English  courts  have  upheld  these 
practices.  Nor,  taking  what  has  fallen  from  the  English  judges 
and  especially  the  later  cases  on  which  we  have  just  commented! 
IS  much  aid  given  to  the  doctrine  that  this  power  exists  as  one 
necessary  to  enable  either  House  of  Congress  to  exercise  success- 
fully their  function  of  legislation. 

^  This  latter  proposition  is  one  which  we  do  not  propose  to  decide 
in  the  present  case,  because  we  are  able  to  decide  it  ^^^thout  passing 
upon  the  existence  or  non-existence  of  such  a  power  in  aid  of  the 
legislative  function. 

As  we  have  already  said,  the  Constitution  expressly  empowers 
each  House  to  punish  its  oum  members  for  disorderly  behavior. 
We  see  no  reason  to  doubt  that  this  punishment  mav  in  a  proper 
case  be  impnsonment,  and  that  it  ma}-  be  for  refusal  to  obey  some 
rule  on  that  subject  made  by  the  House  for  the  preservation  of 
order. 

So,  also,  the  penalty  which  each  House  is  authorized  to  inflict 
m  order  to  compel  the  attendance  of  absent  members  may  be 
imprisonment,  and  this  may  be  for  a  violation  of  some  order  or 
standing  rule  on  that  subject. 

Each  House  is  by  the  Constitution  made  the  judge  of  the  elec- 
tion and  quahfication  of  its  members.  In  deciding  on  these  it 
has  an  undoubted  right  to  examine  vvitnesses  and  inspect  papers, 
subject  to  the  usual  rights  of  v^-itnesses  in  such  cases;  and  it  may 
be  that  a  ^vitness  would  be  subject  to  like  punishment  at  the  hands 
of  the  body  engaged  in  trying  a  contested  election,  for  refusing 


76  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

to  testify,  that  he  would  if  the  ease  were  pending  before  a  court 
of  judicature. 

The  House  of  Representatives  has  the  sole  right  to  impeach 
officers  of  the  government,  and  the  Senate  to  try  them.  Where 
the  question  of  such  impeachment  is  before  either  body  acting 
in  its  appropriate  sphere  on  that  subject,  we  see  no  reason  to 
doubt  the  right  to  compel  the  attendance  of  witnesses,  and  their 
answer  to  proper  questions,  in  the  same  manner  and  by  the  use 
of  the  same  means  that  courts  of  justice  can  in  like  cases. 

Whether  the  power  of  punishment  in  either  House  by  fine  or 
imprisonment  goes  beyond  this  or  not,  we  are  sure  that  no  person 
can  be  punished  for  contumacy  as  a  witness  before  either  House, 
unless  his  testimony  is  required  in  a  matter  into  which  that  House 
has  jurisdiction  to  inquire,  and  we  feel  equally  sure  that  neither 
of  these  bodies  possesses  the  general  power  of  making  inquiry 
into  the  private  affairs  of  the  citizen. 

It  is  believed  to  be  one  of  the  chief  merits  of  the  American 
system  of  written  constitutional  law,  that  all  the  powers  intrusted 
to  government,  whether  State  or  national,  are  divided  into  the 
three  grand  departments,  the  executive,  the  legislative,  and  the 
judicial.  That  the  functions  appropriate  to  each  of  these  branches 
of  government  shall  be  vested  in  a  separate  body  of  public  ser- 
vants, and  that  the  perfection  of  the  system  requires  that  the 
fines  which  separate  and  divide  these  departments  shall  be  broadly 
and  clearly  defined.  It  is  also  essential  to  the  successful  working 
of  this  system  that  the  persons  intrusted  with  power  in  any  one 
of  these  branches  shall  not  be  permitted  to  encroach  upon  the 
powers  confided  to  the  others,  but  that  each  shall  by  the  law  of 
its  creation  be  limited  to  the  exercise  of  the  powers  appropriate 
to  its  own  department  and  no  other.  To  these  general  proposi- 
tions there  are  in  the  Constitution  of  the  United  States  some 
important  exceptions.  One  of  these  is,  that  the  President  is 
so  far  made  a  part  of  the  legislative  power,  that  his  assent  is 
required  to  the  enactment  of  all  statutes  and  resolutions  of 
Congress. 

This,  however,  is  so  only  to  a  limited  extent,  for  a  bill  may 
become  a  law  notwithstanding  the  refusal  of  the  President  to 
approve  it,  by  a  vote  of  two-thirds  of  each  House  of  Congress. 

So,  also,  the  Senate  is  made  a  partaker  in  the  functions  of 
appointing  officers  and  making  treaties,  which  are  supposed  to 
be  properly  executive,  by  requiring  its  consent  to  the  appoint- 
ment of  such  ofl&cers  and  the  ratification  of  treaties.     The  Senate 


KILBOURN   V.    THOMPSON.  77 

also  exercises  the  judicial  power  of  trying  impeachments,  and  the 
House  of  preferring  articles  of  impeachment. 

In  the  main,  however,  that  instrument,  the  model  on  which 
are  constructed  the  fundamental  laws  of  the  States,  has  blocked 
out  with  singular  precision,  and  in  bold  hues,  in  its  three  primary- 
articles,  the  allotment  of  power  to  the  executive,  the  legislative, 
and  the  judicial  departments  of  the  government.  It  also  remains 
true,  as  a  general  rule,  that  the  powers  confided  by  the  Constitu- 
tion to  one  of  these  departments  cannot  be  exercised  by  another. 

It  may  be  said  that  these  are  truisms  which  need  no  repetition 
here  to  give  them  force.  But  while  the  experience  of  almost  a 
century  has,  in  general,  shown  a  wise  and  commendable  forbearance 
in  each  of  these  branches  from  encroachments  upon  the  others, 
it  is  not  to  be  denied  that  such  attempts  have  been  made,  and  it  is 
believed  not  always  without  success.  The  increase  in  the  number 
of  States,  in  their  population  and  wealth,  and  in  the  amount  of 
power,  if  not  in  its  nature  to  be  exercised  by  the  federal  govern- 
ment, presents  powerful  and  growing  temptations  to  those  to 
whom  that  exercise  is  intrusted,  to  overstep  the  just  boundaries 
of  their  own  department,  and  enter  upon  the  domain  of  one  of 
the  others,  or  to  assume  powers  not  intrusted  to  either  of  them. 

The  Hou$e  of  Representatives  having  the  exclusive  right  to 
originate  all  bills  for  raising  revenue,  whether  by  taxation  or 
other^\ise;  having  witli  the  Senate  the  right  to  declare  war,  and 
fix  the  compensation  of  all  officers  and  servants  of  the  government, 
and  vote  the  supplies  which  must  pay  that  compensation;  and 
being  also  the  most  numerous  body  of  all  those  engaged  in  the 
exercise  of  the  primary  powers  of  the  government,  —  is  for  these 
reasons  least  of  all  liable  to  encroachments  upon  its  appropriate 
domain. 

By  reason,  also,  of  its  popular  origin,  and  the  frequency  with 
which  the  short  term  of  office  of  its  members  requires  the  renewal 
of  their  authority  at  the  hands  of  the  people,  —  the  great  source 
of  all  power  in  this  country,  —  encroachments  by  that  body  on 
the  domain  of  co-ordinate  branches  of  the  government  would  be 
received  with  less  distrust  than  a  similar  exercise  of  unwarranted 
power  by  any  other  department  of  the  government.  It  is  all 
the  more  necessary,  therefore,  that  the  exercise  of  power  by  this 
body,  when  acting  separately  from  and  independently  of  all 
other  depositaries  of  power,  should  be  watched  wdth  vigilance, 
and  when  called  in  question  before  any  other  tribunal  having  the 
right  to  pass  upon  it  that  it  should  receive  the  most  careful  scrutiny. 


78  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

In  looking  to  the  preamble  and  resolution  under  Avhich  the 
committee  acted,  before  which  Kilbourn  refused  to  testify,  we  are 
of  opinion  that  the  House  of  Roprosontativcs  not  only  exceeded 
the  limit  of  its  own  authority,  but  assumed  a  power  which  could 
only  be  properly  exercised  by  another  branch  of  the  government, 
because  it  was  in  its  nature  clearly  judicial. 

The  Constitution  declares  that  the  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and  estab- 
lish. If  what  we  have  said  of  the  division  of  the  powers  of  the 
government  among  the  three  departments  be  sound,  this  is  equiv- 
alent to  a  declaration  that  no  judicial  power  is  vested  in  the  Con- 
grt^ss  or  either  branch  of  it,  save  in  the  cases  specifically  enumerated 
to  which  we  have  referred.  If  the  investigation  which  the  com- 
mittee was  directed  to  make  was  judicial  in  its  character,  and  could 
only  be  properly  and  successfully  made  by  a  court  of  justice,  and 
if  it  related  to  a  matter  wherein  relief  or  redress  could  be  had  only 
by  a  judicial  proceeding,  we  do  not,  after  what  has  been  said, 
deem  it  necessary  to  discuss  the  proposition  that  the  power 
attempted  to  be  exercised  was  one  confided  by  the  Constitution 
to  the  judicial  and  not  to  the  legislative  department  of  the  govern- 
ment. We  think  it  equally  clear  that  the  power  asserted  is  judicial 
and  not  legislative. 

The  preamble  to  the  resolution  recites  that  the  government 
of  the  United  States  is  a  creditor  of  Jay  Cooke  &  Co.,  then  in 
bankruptcy  in  the  District  Court  of  the  United  States  for  the 
Eastern  District  of  Permsylvania. 

If  the  United  States  is  a  creditor  of  any  citizen,  or  of  any  one 
else  on  whom  process  can  be  served,  the  usual,  the  only  legal 
mode  of  enforcing  payment  of  the  debt  is  by  a  resort  to  a  court 
of  justice.  For  this  purpose,  among  others.  Congress  has  created 
courts  of  the  United  States,  and  officers  have  been  appointed  to 
prosecute  the  pleas  of  the  government  in  these  courts.  .  .  . 

The  resolution  adopted  as  a  sequence  of  this  preamble  contains 
no  hint  of  any  intention  of  final  action  by  Congress  o'n  the  subject. 
In  all  the  argument  of  the  case  no  suggestion  has  been  made  of 
what  the  House  of  Representatives  or  the  Congress  could  have 
done  in  the  way  of  remedying  the  wrong  or  securing  the  creditors 
of  Jay  Cooke  &  Co.,  or  even  the  United  States.  Was  it  to  be 
simply  a  fruitless  investigation  into  the  personal  affairs  of  in- 
dividuals ?  If  so,  the  House  of  Representatives  had  no  power  or 
authority  in  the  matter  more  than  any  other  equal  number  of 


KILBOURN   V.    THOMPSON.  79 

gentlemen  interested  for  the  government  of  their  country.     By 
"  fruitless  "  we  mean  that  it  could  result  in  no  valid  legislation 
on  the  subject  to  which  the  inquiry  referred. 
What  was  this  committee  to  do  ? 

To  inquire  into  the  nature  and  history  of  the  real  estate  pool. 
How  indefinite!  What  was  the  real  estate  pool  ?  Is  it  charged 
with  any  crime  or  offence  ?  If  so,  the  courts  alone  can  punish 
the  members  of  it.  Is  it  charged  with  a  fraud  against  the  gov- 
ernment ?  Here,  again,  the  courts,  and  they  alone,  can  afford 
a  remedy.  .  .  . 

We  are  of  opinion,  for  these  reasons,  that  the  resolution  of  the 
House  of  Representatives  authorizing  the  investigation  was  in 
excess  of  the  power  conferred  on  that  body  by  the  constitution; 
that  the  committee,  therefore,  had  no  lawful  authority  to  require 
Kill)ourn  to  testify  as  a  witness  beyond  what  he  voluntarily 
chose  to  tell;  that  the  orders  and  resolutions  of  the  House, 
and  the  warrant  of  the  speaker,  under  which  Kilbourn  was  im- 
prisoned, are,  in  like  manner,  void  for  want  of  jurisdiction  in 
that  body,  and  that  his  imprisonment  was  without  any  lawful 
authority.  .  .  . 

It  remains  to  consider  the  matter  special  to  the  other  defend- 
ants set  out  in  their  plea,  which  claims  the  protection  due  to  their 
character  as  members  of  the  House  of  Representatives.  In  sup- 
port of  this  defence  they  allege  that  they  did  not  in  any  manner 
assist  in  the  arrest  of  Kilbourn  or  his  imprisonment,  nor  did  they 
order  or  direct  the  same,  except  by  their  votes  and  by  their  partic- 
ipation as  members  in  the  introduction  of,  and  assent  to,  the 
official  acts  and  proceedings  of  the  House,  which  they  did  and 
performed  as  members  of  the  House,  in  the  due  discharge  of  their 
duties,  and  not  otherwise. 

As  these  defendants  did  not  make  the  actual  assault  on  the 
plaintiff,  nor  personally  assist  in  arresting  or  confining  him,  they 
can  only  be  held  liable  on  the  charge  made  against  them  as  persons 
who  had  ordered  or  directed  in  the  matter,  so  as  to  become  respon- 
sible for  the  acts  which  they  directed.  .  .  . 

The  defendants  set  up  the  protection  of  the  Constitution,  under 
which  they  do  business  as  part  of  the  Congress  of  the  United 
States.  That  Constitution  declares  that  .  .  .  "for  any  speech 
or  debate  in  either  House  they  shall  not  be  questioned  in  any 
other  place." 

Is  what  the  defendants  did  in  the  matter  in  hand  covered  by 
this  provision  ?     Is  a  resolution  offered  by  a  member,  a  speech 


80  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

or  debate,  within  the  meaning  of  the  clause  ?  Does  its  protection 
extend  to  the  report  which  they  made  to  the  House  of  Kilbourn's 
dehnquency  ?  To  the  expression  of  opinion  that  he  was  in  con- 
tempt of  the  authority  of  the  House  ?  To  their  vote  in  favor  of 
the  resolution  under  which  he  was  imprisoned  ?  .  .  . 

We  may,  perhaps,  find  some  aid  in  ascertaining  the  meaning 
of  this  provision,  if  we  can  find  out  its  source,  and  fortunately  in 

this  there  is  no  difficulty The  freedom  from  arrest  and 

freedom  of  speech  in  the  two  Houses  of  Parliament  were  long 
subjects  of  contest  between  the  Tudor  and  Stuart  kings  and  the 
House  of  Commons.  When,  however,  the  revolution  of  1688 
expelled  the  last  of  the  Stuarts  and  introduced  a  new  dynasty, 
many  of  these  questions  were  settled  by  a  bill  of  rights,  formally 
declared  by  the  ParUament  and  assented  to  by  the  crown.  1  W.  & 
M.,  St.  2,  c.  2.  One  of  these  declarations  is  "  that  the  freedom  of 
speech,  and  debates,  and  proceedings  in  Parliament,  ought  not 
to  be  impeached  or  questioned  in  any  court  or  place  out  of  Parlia- 
ment." .  .  . 

It  would  be  a  narrow  view  of  the  constitutional  provision  to 
limit  it  to  words  spoken  in  debate.  The  reason  of  the  rule  is  as 
forcible  in  its  application  to  written  reports  presented  in  that 
body  by  its  committees,  to  resolutions  offered,  which,  though  in 
writing,  must  be  reproduced  in  speech,  and  to  the  act  of  voting, 
whether  it  is  done  vocally  or  by  passing  between  the  tellers.  In 
short,  to  things  generally  done  in  a  session  of  the  House  by  one 
of  its  members  in  relation  to  the  business  before  it. 

It  is  not  necessary  to  decide  here  that  there  may  not  be  things 
done,  in  the  one  House  or  the  other,  of  an  extraordinary  character, 
for  which  the  members  who  take  part  in  the  act  may  be  held  legally 
responsible.  If  we  could  suppose  the  members  of  these  bodies 
so  far  to  forget  their  high  functions  and  the  noble  instrument 
under  which  they  act  as  to  imitate  the  Long  Parliament  in  the 
execution  of  the  Chief  Magistrate  of  the  nation,  or  to  follow  the 
example  of  the  French  Assembly  in  assuming  the  function  of  a 
court  for  capital  punishment  we  are  not  prepared  to  say  that  such 
an  utter  perversion  of  their  powers  to  a  criminal  purpose  would  be 
screened  from  punishment  by  the  constitutional  provision  for 
freedom  of  debate.  In  this,  as  in  other  matters  which  have  been 
pressed  on  our  attention,  we  prefer  to  decide  only  what  is  necessary 
to  the  case  in  hand,  and  we  think  the  plea  set  up  by  those  of  the 
defendants  who  were  members  of  the  House  is  a  good  defence,  and 


KILBOURX    V.    THOMPSON.  81 

the  judgment  of  the  court  overruhng  the  demurrer  to  it  and  giving 
judgment  for  those  defendants  will  be  affirmed.  As  to  Thompson, 
the  judgment  \\'ill  be  reversed  and  the  case  remanded  for  further 
proceedings. 

So  ordered.^ 

1  In  In  re  Chapman,  166  U.  S.  661  (1897),  on  habeas  corpus,  a  sentence  of 
imprisonment  by  the  Supreme  Court  of  the  District  of  Columbia  was  upheld 
under  a  federal  statute  to  the  effect  that  "  every  person  who,  having  been 
summoned  as  a  witness  by  the  authority  of  either  House  of  Congress,  to  give 
testimony  or  to  produce  papers  upon  any  matter  under  inquiry  before  either 
House,  or  any  committee  of  either  House  of  Congress,  wilfully  makes  default, 
or  who,  having  appeared,  refuses  to  answer  any  question  pertinent  to  the 
question  under  inquiry,  shall  be  deemed  guilty  of  a  misdemeanor,  punishable 
by  a  fine  of  not  more  than  one  thousand  dollars  nor  less  than  one  hundred 
dollars,  and  imprisonment  in  a  common  jail  for  not  less  than  one  month  nor 
more  than  twelve  months,"  and  that  on  the  request  of  the  presiding  officer  of 
the  proper  House,  it  shall  be  the  duty  of  the  District  Attorney  of  the  District 
of  Columbia  to  bring  the  matter  before  the  grand  jury.  Fuller,  C.  J.,,  for 
the  court,  after  summarizing  Kilbourn  v.  Thompson,  supra,  said:  "The  case 
at  bar  is  wholly  different.  Specific  charges  publicly  made  against  Senators 
had  been  brought  to  the  attention  of  the  Senate,  and  the  Senate  had  deter- 
mined that  investigation  was  necessary.  The  subject-matter  as  affecting 
the  Senate  was  within  the  jurisdiction  of  the  Senate.  The  questions  were 
not  intrusions  into  the  affairs  of  the  citizen;  they  did  not  seek  to  ascertain 
any  facts  as  to  the  conduct,  methods,  extent,  or  details  of  the  firm  in  question, 
but  only  whether  that  firm,  confessedly  engaged  in  buying  and  selling  stocks, 
and  the  particular  stock  named,  was  employed  by  any  Senator  to  buy  or  sell 
for  him  any  of  that  stock,  whose  market  price  might  be  affected  by  the  Senate's 
action.  .  .  .  The  questions  were  undoubtedly  pertinent  to  the  subject-matter 
of  the  inquiry.  The  resolutions  directed  the  committee  to  inquire  '  whether 
any  Senator  has  been,  or  is,  speculating  in  what  are  known  as  sugar  stocks 
during  the  consideration  of  the  tariff  bill  now  before  the  Senate.'  What  the 
Senate  might  or  might  not  do  upon  the  facts  when  ascertained  we  cannot  say, 
nor  are  we  called  upon  to  inquire  whether  such  ventures  might  be  defensible, 
as  contended  in  argument,  but  it  is  plain  that  negative  answers  would  have 
cleared  that  body  of  what  the  Senate  regarded  as  offensive  imputations,  while 
affirmative  answers  might  have  led  to  further  action  on  the  part  of  the  Senate 
within  its  constitutional  powers."  —  Ed. 


82  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

AMERICAN  SCHOOL  OF  MAGNETIC  HEALING 
V.  McANNULTY. 

Supreme  Court  of  the  United  States.     1902. 
[187  United  States,  94.] ' 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Missouri. 

This  was  an  appeal  from  a  decree  dismissing  on  its  merits  an 
amended  bill  praying  an  injunction  to  restrain  a  postmaster 
from  carrying  out  a  so-called  "  fraud  order  "  of  the  Postmaster 
General,  which  order  was  based  upon  Revised  Statutes,  sees. 
3929  and  4041,  and  upon  section  4  of  an  act  of  March  2,  1895,  and 
prohibited  the  delivery  of  mail  matter  to  the  complainants.  The 
defendant  demurred  to  the  bill.  The  court  sustained  the  demurrer, 
and,  the  complainants  declining  to  plead  further,  dismissed  the 
amended  bill  at  complainants'  cost.  Thereupon  this  appeal  was 
taken. 

James  H.  Harkless,  for  appellants.  John  O'Grady  and  Charles 
S.  Crysler  were  with  him  on  the  brief.  Solicitor  General  Richards 
and  Special  Attorney  Robert  A.  Hoiuard,  for  appellee. 

Peckham,  J.,  .  .  .  dehvered  the  opinion  of  the  court 

First.  As  the  case  arises  on  demurrer,  all  material  facts  averred 
in  the  bill  are,  of  course,  admitted.  It  is,  therefore,  admitted  that 
the  business  of  the  complainants  is  founded  "  almost  exclusively 
on  the  physical  and  practical  proposition  that  the  mind  of  the 
human  race  is  largely  responsible  for  its  ills,  and  is  a  perceptible 
factor  in  the  treating,  curing,  benefiting  and  remedying  thereof, 
and  that  the  human  race  does  possess  the  innate  power,  through 
proper  exercise  of  the  faculty  of  the  brain  and  mind,  to  largely 
control  and  remedy  the  ills  that  humanity  is  heir  to,  and  (com- 
plainants) discard  and  eliminate  from  their  treatment  what  is 
commonly  known  as  divine  healing  and  Christian  science,  and 
they  are  confined  to  practical  scientific  treatment  emanating  from 
the  source  aforesaid." 

These  allegations  are  not  conclusions  of  law,  but  are  statements 
of  fact  upon  which,  as  averred,  the  business  of  the  complainants 
is  based,  and  the  question  is  whether  the  complainants,  who  are 
conducting  the  business  upon  the  basis  stated,  thereby  obtain 
money  and  property  through  the  mails  by  means  of  false  or  fraud- 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


AMERICAN   SCHOOL    V.    McAXNULTY.  83 

ulent  pretenses,  representations  or  promises.  Can  such  a  busi- 
ness be  properly  pronounced  a  fraud  within  the  statutes  of  the 
United  States  ?  .  .  . 

That  the  complainants  had  a  hearing  before  the  Postmaster 
General,  and  that  his  decision  was  made  after  such  hearing,  can- 
not affect  the  case.  The  allegation  in  the  bill  as  to  the  nature 
of  the  claim  of  complainants  and  upon  what  it  is  founded,  is  ad- 
mitted by  the  demurrer,  and  we  therefore  have  undisputed  and 
admitted  facts,  which  show  upon  what  basis  the  treatment  by 
complainants  rests,  and  what  is  the  nature  and  character  of  their 
business.  From  these  admitted  facts  it  is  obvious  that  com- 
plainants in  conducting  their  business,  so  far  as  this  record  shows, 
do  not  violate  the  laws  of  Congress.  The  statutes  do  not  as  matter 
of  law  cover  the  facts  herein. 

Second.  Conceding  for  the  purpose  of  this  case,  that  Congress 
has  full  and  absolute  jurisdiction  over  the  mails,  and  that  it  may 
provide  who  may  and  who  may  not  use  them,  and  that  its  action 
is  not  subject  to  review  by  the  courts,  and  also  conceding  the 
conclusive  character  of  the  determination  by  the  Postmaster 
General  of  any  material  and  relevant  questions  of  fact  arising 
in  the  administration  of  the  statutes  of  Congress  relating  to  his 
department,  the  question  still  remains  as  to  the  power  of  the 
court  to  grant  relief  where  the  Postmaster  General  has  assumed 
and  exercised  jurisdiction  in  a  case  not  covered  by  the  statutes, 
and  where  he  has  ordered  the  detention  of  mail  matter  when  the 
statutes  have  not  granted  him  power  so  to  order.  Has  Congress 
intrusted  the  administration  of  these  statutes  wholly  to  the  dis- 
cretion of  the  Postmaster  General,  and  to  such  an  extent  that  his 
determination  is  conclusive  upon  all  questions  arising  under  those 
statutes,  even  though  the  evidence  which  is  adduced  before  him 
is  wholly  uncontradicted,  and  shows  beyond  any  room  for  dispute 
or  douljt  that  the  case  in  any  view  is  beyond  the  statutes,  and  not 
covered  or  provided  for  by  them  ? 

That  the  conduct  of  the  Post  Office  is  a  part  of  the  administra- 
tive department  of  the  government  is  entirely  true,  but  that  does 
not  necessarily  and  always  oust  the  courts  of  jurisdiction  to  grant 
relief  to  a  party  aggrieved  by  any  action  by  the  head  or  one  of  the 
subordinate  officials  of  that  department  which  is  unauthorized 
by  the  statute  under  which  he  assumes  to  act.  The  acts  of  all  its 
officers  must  be  justified  by  some  law,  and  in  case  an  official  vio- 
lates the  law  to  the  injury  of  an  individual  the  courts  generally 
have  jurisdiction  to  grant  relief. 


84  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

The  Land  Department  of  the  United  States  is  administrative 
in  its  character,  and  it  has  been  frequently  held  by  this  court 
that,  in  the  administration  of  the  pubHc  land  system  of  the  United 
States,  questions  of  fact  are  for  the  consideration  and  judgment 
of  the  Land  Department,  and  its  judgment  thereon  is  final.  Bur- 
fenningz;.  Chicago  &c.  Railway  Company,  163  U.  S.  321;  Johnson 
V.  Drew,  171  U.  S.  93,  99;  Gardner  v.  Bonestell,  180  U.  S.  362. 

While  the  analogy  between  the  above  cited  cases  and  the  one 
now  before  us  is  not  perfect,  yet  even  in  them  it  is  held  that  the 
decisions  of  the  officers  of  the  department  upon  questions  of  law 
do  not  conclude  the  courts,  and  they  have  power  to  grant  relief 
to  an  individual  aggrieved  by  an  erroneous  decision  of  a  legal 
question  by  department  officers.  .  .  . 

Here  it  is  contended  that  the  Postmaster  General  has,  in  a  case 
not  covered  by  the  acts  of  Congress,  excluded  from  the  mails  let- 
ters addressed  to  the  complainants.  His  right  to  exclude  letters, 
or  to  refuse  to  permit  their  deUvery  to  persons  addressed,  must 
depend  upon  some  law  of  Congress,  and  if  no  such  law  exist,  then 
he  cannot  exclude  or  refuse  to  deliver  them.  Conceding,  arguendo, 
that  when  a  question  of  fact  arises,  which,  if  found  in  one  way, 
would  show  a  violation  of  the  statutes  in  question  in  some  particu- 
lar, the  decision  of  the  Postmaster  General  that  such  violation 
had  occurred,  based  upon  some  evidence  to  that  effect,  would  be 
conclusive  and  final,  and  not  the  subject  of  review  by  any  court, 
yet  to  that  assumption  must  be  added  the  statement  that  if  the 
evidence  before  the  Postmaster  General,  in  any  view  of  the  facts, 
failed  to  show  a  violation  of  any  Federal  law,  the  determination 
of  that  official  that  such  violation  existed  would  not  be  the  deter- 
mination of  a  question  of  fact,  but  a  pure  mistake  of  law  on  his 
part,  because  the  facts  being  conceded,  whether  they  amounted 
to  a  violation  of  the  statutes  would  be  a  legal  question  and  not  a 
question  of  fact.  Being  a  question  of  law  simply,  and  the  case 
stated  in  the  bill  being  outside  of  the  statutes,  the  result  is  that 
the  Postmaster  General  has  ordered  the  retention  of  letters  directed 
to  complainants  in  a  case  not  authorized  by  those  statutes.  To 
authorize  the  interference  of  the  Postmaster  General,  the  facts 
stated  must  in  some  aspect  be  sufficient  to  permit  him  under  the 
statutes  to  make  the  order. 

The  facts,  which  are  here  admitted  of  record,  show  that  the 
case  is  not  one  which  by  any  construction  of  those  facts  is  cov- 
ered or  provided  for  by  the  statutes  under  which  the  Postmaster 
General  has  assumed  to  act,  and  his  determination  that  those 


UNITED    STATES   V.    JU   TOY.  85 

admitted  facts  do  authorize  his  action  is  a  clear  mistake  of  law 
as  applied  to  the  admitted  facts,  and  the  courts,  therefore,  must 
have  power  in  a  proper  proceeding  to  grant  relief.  Otherwise, 
the  individual  is  left  to  the  absolutely  uncontrolled  and  arbi- 
trary action  of  a  public  and  administrative  officer,  whose  action 
is  unauthorized  by  anj-  law  and  is  in  violation  of  the  rights  of 
the  individual.  Where  the  action  of  such  an  officer  is  thus  un- 
authorized he  thereby  violates  the  property  rights  of  the  person 
whose  letters  are  \A-ithheld.  .  .  . 

The  Postmaster  General's  order  being  the  result  of  a  mistaken 
view  of  the  law  could  not  operate  as  a  defence  to  this  action  on 
the  part  of  the  defendant,  though  it  might  justify  his  obedience 
thereto  until  some  action  of  the  court.  In  such  a  case  as  the  one 
before  us  there  is  no  adequate  remedy  at  law,  the  injunction  to 
prohibit  the  further  withholding  of  the  mail  from  complainants 
being  the  only  remedy  at  all  adequate  to  the  full  relief  to  which 
the  complainants  are  entitled.  Although  the  Postmaster  General 
had  jurisdiction  over  the  subject-matter  (assuming  the  vahdity 
of  the  acts)  and  tlierefore  it  was  his  duty  upon  complaint  being 
made  to  decide  the  question  of  law  whether  the  case  stated  was 
within  the  statute,  yet  such  decision  being  a  legal  error  does  not 
bind  the  courts.  .  .  .  Judgment  reversed.^ 

White,  J.,  and  McKenna,  J.,  believing  the  judgment  should 
be  affirmed,  dissented.  .  .  . 


UNITED   STATES  v.  JU  TOY. 

Supreme  Court  of  the  United  States.     1905. 

[198  United  States,  253.) 

Certificate  from  the  Circuit  Court  of  Appeals  for  the  Ninth 
Circuit. 

The  facts  are  stated  in  the  opinion. 

Assistant  Attorney  General  McReynolds  for  the  United  States. 
Hayden  Johnson,  with  whom  Henry  C.  Dibble  and  Oliver  Dibble 
were  on  the  brief,  for  appellee. 

1  See  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106  (1904);  and  Public  Clear- 
ing House  V.  Coyne,  194  U.  8.  497  (1904). 

Compare  Degge  v.  Hitchcock,  229  U.  S.  102  (1913).  —  Ed. 


86  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 
This  case  comes  here  on  a  certificate  from  the  Circuit  Court 
of  Appeals  presenting  certain  questions  of  law.  It  appears  that 
the  appellee,  being  detained  by  the  master  of  the  Steamship 
Doric  for  return  to  China,  presented  a  petition  for  habeas  corpus 
to  the  District  Court,  alleging  that  he  was  a  native-l)orn  citizen 
of  the  United  States,  returning  after  a  temporary  departure, 
and  was  denied  permission  to  land  by  the  collector  of  the  port  of 
San  Francisco.  It  also  appears  from  the  petition  that  he  took 
an  appeal  from  the  denial,  and  that  the  decision  was  affirmed  by 
the  Secretary  of  Commerce  and  Labor.  No  further  grounds  are 
stated.  The  writ  issued  and  the  United  States  made  return,  and 
answered  sho^ving  all  the  proceedings  before  the  Department, 
which  are  not  denied  to  have  been  in  regular  form,  and  setting 
forth  all  of  the  evidence  and  the  orders  made.  The  answer  also 
denied  the  allegations  of  the  petition.  Motions  to  dismiss  the 
writ  were  made  on  the  grounds  that  the  decision  of  the  Secretary 
was  conclusive  and  that  no  abuse  of  authority  was  shown.  These 
were  denied,  and  the  District  Court  decided  seemingly  on  new 
evidence,  subject  to  exceptions,  that  Ju  Toy  was  a  native-born 
citizen  of  the  United  States.  An  appeal  was  taken  to  the  Circuit 
Court  of  Appeals  alleging  errors  the  nature  of  which  has  been 
indicated.  Thereupon  the  latter  court  certified  the  following 
questions : 

"  First.  Should  a  District  Court  of  the  United  States  grant 
a  writ  of  habeas  corpus  in  behalf  of  a  person  of  Chinese  descent 
being  held  for  return  to  China  by  the  steamship  company  which 
brought  him  therefrom,  who  having  recently  arrived  at  a  port 
of  the  United  States  made  application  to  land  as  a  native-born 
citizen  thereof  and  who,  after  examination  by  the  duly  authorized 
immigration  officers,  was  found  by  them  not  to  have  been  bom 
in  the  United  States,  was  denied  admission  and  ordered  deported, 
which  finding  and  action  upon  appeal  was  aflSrmed  by  the  Secre- 
tary of  Commerce  and  Labor,  when  the  foregoing  facts  appear 
to  the  court  and  the  petition  for  the  writ  alleges  unlawful  deten- 
tion on  the  sole  ground  that  petitioner  does  not  come  A\'ithin  the 
restrictions  of  the  Chinese  exclusion  acts,  because  born  in  and  a 
citizen  of  the  United  States  and  does  not  allege  or  show  in  any 
other  way  unlawful  action  or  abuse  of  their  discretion  or  powers 
by  the  immigration  officers  who  excluded  him  ? 

"Second.     In  a  habeas  corpus    proceeding  should  a  District 
Court  of  the  United  States  dismiss  the  writ  or  should  it  direct 


UNITED    STATES   V.    JU   TOY.  87 

a  new  or  further  hearing  upon  evidence  to  be  presented  M'liere 
the  writ  had  been  granted  in  behalf  of  a  person  of  Chinese  descent 
being  held  by  the  steamship  company  for  return  to  China  from 
whence  it  brought  him,  who  recently  arrived  from  that  country 
and  asked  permission  to  land  upon  the  ground  that  he  was  born  in 
and  was  a  citizen  of  the  United  States,  when  the  uncontradicted 
return  and  answer  show  that  such  person  was  granted  a  hearing 
by  the  proper  immigration  officers  who  found  he  was  not  born 
in  the  United  States,  that  his  application  for  admission  was  con- 
sidered and  denied  by  such  officers,  and  that  the  denial  was  affirmed 
upon  appeal  to  the  Secretary  of  Commerce  and  Labor,  and  where 
nothing  more  appears  to  show  that  such  executive  officers  failed 
to  grant  a  proper  hearing,  abused  their  discretion,  or  acted  in 
any  unlawful  or  improper  way  upon  the  case  presented  to  them 
for  determination  ? 

"  Third.  In  a  habeas  corpus  proceeding  in  a  District  Court 
of  the 'United  States  instituted  in  behalf  of  a  person  of  Chinese 
descent  being  held  for  return  to  China  by  the  steamship  com- 
pany which  recently  brought  him  therefrom  to  a  port  of  the 
United  States  and  who  applied  for  admission  therein  upon  the 
ground  that  he  was  a  native-born  citizen  thereof  but  who,  after 
a  hearing,  the  lawfully  designated  immigration  officers  found 
was  not  born  therein  and  to  whom  they  denied  admission  which 
fincUng  and  denial,  upon  appeal  to  the  Secretary  of  Commerce 
and  Labor,  was  affirmed  —  should  the  court  treat  the  finding 
and  action  of  such  executive  officers  upon  the  question  of  citizen- 
ship and  other  questions  of  fact  as  having  been  made  by  a  tribunal 
authorized  to  decide  the  same  and  as  final  and  conclusive  unless 
it  be  made  affirmatively  to  appear  that  such  officers,  in  the  case 
submitted  to  them,  abused  the  discretion  vested  in  them  or  in 
some  other  way  in  hearing  and  determining  the  same  committed 
prejudicial  error  ?  " 

We  assume  in  what  we  have  to  say,  as  the  questions  assume, 
that  no  abuse  of  authority  of  any  kind  is  alleged.  That  being 
out  of  the  case,  the  first  of  them  is  answered  by  the  case  of  United 
States  V.  Sing  Tuck,  194  U.  S.  161,  170.  "  A  petition  for  habeas 
corpus  ought  not  to  be  entertained,  unless  the  court  is  satisfied 
that  the  petitioner  can  make  out  at  least  a  prima  facie  case." 
This  petition  should  have  been  denied  on  this  ground,  irrespective 
of  what  more  we  have  to  say,  because  it  alleged  nothing  except 
citizenship.  It  disclosed  neither  abuse  of  authority  nor  the 
existence  of  e\'idence  not  laid  before  the  Secretary.     It  did  not 


88  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL   POWERS. 

even  set  forth  that  evidence  or  allege  its  effect.  But  as  it  was 
entertained  and  the  District  Court  found  for  the  petitioner  it 
would  be  a  severe  measure  to  order  the  petition  to  be  dismissed 
on  that  ground  now,  and  we  pass  on  to  further  considerations. 

The  broad  question  is  presented  whether  or  not  the  decision 
of  the  Secretary  of  Commerce  and  Labor  is  conclusive.  It  was 
held  in  United  States  v.  Sing  Tuck,  194  U.  S.  161,  167,  that  the 
act  of  August  18,  1894,  c.  301,  §  1,  28  Stat.  372,  390,  purported 
to  make  it  so,  but  whether  the  statute  could  have  that  effect 
constitutionally  was  left  untouched,  except  by  a  reference  to  cases 
where  an  opinion  already  had  been  expressed.  To  quote  the 
latest  first,  in  The  Japanese  Immigrant  Case  (Yamataya  v.  Fisher), 
189  U.  S.  86,  97,  it  was  said:  "  That  Congress  may  exclude  aliens 
of  a  particular  race  from  the  United  States;  prescribe  the  terms 
and  conditions  upon  which  certain  classes  of  aliens  may  come  to 
this  country;  establish  regulations  for  sending  out  of  the  country 
such  ahens  as  come  here  in  violation  of  law;  and  commit 'the  en- 
forcement of  such  provisions,  conditions  and  regulations  exclu- 
sively to  executive  officers,  without  judicial  intervention,  are 
principles  firmly  established  by  the  decisions  of  this  court."  See 
also  Turner  v.  Williams,  194  U.  S.  279,  290,  291;  Chin  Bak  Kan 
V.  United  States,  186  U.  S.  193,  200.  In  Fok  Young  Yo  v.  United 
States,  185  U.  S.  296,  304,  305,  it  was  held  that  the  decision  of  the 
collector  of  customs  on  the  right  of  transit  across  the  territory  of 
the  United  States  was  conclusive,  and,  still  more  to  the  point, 
in  Lem  Moon  Sing  v.  United  States,  158  U.  S.  538,  where  the 
petitioner  for  habeas  corpus  alleged  facts  which,  if  true,  gave  him 
a  right  to  enter  and  remain  in  the  country,  it  was  held  that  the 
decision  of  the  collector  was  final  as  to  whether  or  not  he  belonged 
to  the  privileged  class. 

It  is  true  that  it  may  be  argued  that  these  cases  are  not  directly 
conclusive  of  the  point  now  under  decision.  It  may  be  said  that 
the  parties  concerned  were  ahens,  and  that  although  they  alleged 
absolute  rights,  and  facts  which  it  was  contended  went  to  the 
jurisdiction  of  the  officer  making  the  decision,  still  their  rights 
were  only  treaty  or  statutory  rights,  and  therefore  were  subject 
to  the  imphed  qualification  imposed  by  the  later  statute,  which 
made  the  decision  of  the  collector  with  regard  to  them  final.  The 
meaning  of  the  cases  and  the  language  which  we  have  quoted  is 
not  satisfied  by  so  narrow  an  interpretation,  but  we  do  not  delay 
upon  them.     They  can  be  read. 


UNITED    STATES   r.    JU   TOY.  89 

It  is  established,  as  we  have  said,  that  the  act  purports  to  make 
the  decision  of  the  Department  final,  whatever  the  ground  on 
which  the  right  to  enter  the  country  is  claimed  —  as  well  when 
it  is  citizenship  as  when  it  is  domicil  and  the  belonging  to  a  class 
excepted  from  the  exclusion  acts.  United  States  v.  Sing  Tuck, 
194  U.  S.  161,  167;  Lem  Moon  Sing  v.  United  States,  158  U.  S. 
538,  546,  547.  It  also  is  established  by  the  former  case  and  others 
which  it  cites  that  the  relevant  portion  of  the  act  of  August  18, 
1894,  c.  301,  is  not  void  as  a  whole.  The  statute  has  been  upheld 
and  enforced.  But  the  relevant  portion  being  a  single  section, 
accomplishing  all  its  results  by  the  same  general  words,  must  be 
valid  as  to  all  that  it  embraces,  or  altogether  void.  An  exception 
of  a  class  constitutionally  exempted  cannot  be  read  into  those 
general  words  merely  for  the  purpose  of  saving  what  remains. 
That  has  been  decided  over  and  over  again.  United  States  v. 
Reese,  92  U.  S.  214,  221;  Trade-Mark  Cases,  100  U.  S.  82,  98,  99; 
Allen  V.  Louisiana,  103  U.  S.  80,  84;  United  States  v.  Harris,  106 
U.  S.  629,  641,  642;  Virginia  Coupon  Cases,  114  U.  S.  269,  305; 
Baldwin  v.  Franks,  120  U.  S.  678,  685-689;  Smiley  v.  Kansas, 
196  U.  S.  447,  455.  It  necessarily  follows  that  when  such  words 
are  sustained  they  are  sustained  to  their  full  extent. 

In  view  of  the  cases  which  we  have  cited  it  seems  no  longer 
open  to  discuss  the  question  propounded  as  a  new  one.  There- 
fore we  do  not  analyze  the  nature  of  the  right  of  a  person  pre- 
senting hihiself  at  the  frontier  for  admission.  In  re  Ross,  140 
U.  S.  453,  464.  But  it  is  not  improper  to  add  a  few  words.  The 
petitioner,  although  physically  within  our  boundaries,  is  to  be 
regarded  as  if  he  had  been  stopped  at  the  limit  of  our  jurisdiction 
and  kept  there  while  his  right  to  enter  was  under  debate.  If,  for 
the  purpose  of  argument,  we  assume  that  the  Fifth  Amendment 
applies  to  him  and  that  to  deny  entrance  to  a  citizen  is  to  deprive 
him  of  liberty,  we  nevertheless  are  of  opinion  that  with  regard  to 
him  due  process  of  law  does  not  require  a  judicial  trial.  That  is 
the  result  of  the  cases  which  we  have  cited  and  the  almost  neces- 
sary result  of  the  power  of  Congress  to  pass  exclusion  laws.  That 
the  decision  may  be  intrusted  to  an  executive  officer  and  that  his 
decision  is  due  process  of  law  was  affirmed  and  explained  in  Nishi- 
mura  Ekiu  v.  United  States,  142  U.  S.  651,  660,  and  in  Fong  Yue 
Ting  V.  United  States,  149  U.  S.  698,  713,  before  the  authorities 
to  which  we  already  have  referred.  It  is  unnecessary  to  repeat 
the  often  quoted  remarks  of  Mr.  Justice  Curtis,  speaking  for 
the  whole  court  in  IMurray's  Lessee  v.  Hoboken  Land  &  Improve- 


90  LEGISLATIVE,    EXECUTIVE,    AND    JUDICIAL    POWERS, 

ment  Co.,  18  How.  272,  280,  to  show  that  the  requirement  of  a 
judicial  trial  does  not  prevail  in  every  case.  Lem  Moon  Sing  v. 
United  States,  158  U.  S.  538,  54G,  547;  Japanese  Immigrant  Case, 
189  U.  S.  86,  100;  Public  Clearing  House  v.  Coyne,  194  U.  S.  497, 
508,  509. 

We  are  of  opinion  that  the  first  question  should  be  answered, 
no;  that  the  third  question  should  be  answered,  yes,  with  the 
result  that  the  second  question  should  be  answered  that  the  writ 
should  be  dismissed,  as  it  should  have  been  dismissed  in  this  case. 

It  will  he  so  certified.^ 

Brewer,  J.,  with  whom  Peckham,  J.,  concurred,  dissenting.  .  .  . 

Day,  J.,  also  dissented. 


UNITED  STATES  v.   EVANS. 
Supreme  Court  of  the  United  States.     1909. 
[213  United  States,  297.] 

Certiorari  to  the  Court  of  Appeals  of  the  District  of  Columbia. 

The  facts  are  stated  in  the  opinion. 

The  Solicitor  General  (Hoyt)  for  petitioner.  No  counsel  ap- 
peared for  respondents. 

Fuller,  C.  J.,  delivered  the  opinion  of  the  court. 

Appellees  were  tried  under  an  indictment  for  murder  in  the 
Supreme  Court  of  the  District  of  Columbia  on  February  1,  1907, 
and  found  not  guilty.  The  United  States  appealed  to  the  Court 
of  Appeals  of  the  District,  and  assigned  error  on  exceptions  taken 

1  See  Pearson  v.  Williams,  202  U.  S.  281  (1906). 

In  Chin  Yow  v.  United  States,  208  U.  S.  8  (1908),  a  Chinese  person  desiring 
to  enter  the  United  States  alleged  that  the  executive  officials  prevented  him 
from  obtaining  testimony;  and  it  was  held  that  a  writ  of  habeas  corpus  should 
issue  in  order  to  determine  whether  the  petitioner  had  had  a  proper  hearing. 

In  Tang  Tun  v.  Edsell,  223  U.  S.  673  (1912),  it  was  held  that  abuse  of 
executive  discretion  is  not  shown  by  mere  I'apidity  of  decision. 

As  to  the  finahty  of  decisions  by  the  Commissioner  of  the  General  Land 
Office,  see  Johnson  v.  Towsley,  13  Wall.  72  (1871);  Vance  v.  Burbank,  101 
U.  S.  514  (1879) ;  United  States  v.  Minor,  1 14  U.  S.  233  (1885) ;  Lee  v.  Johnson, 
116  U.  S.  48  (1885);  and  Estes  v.  Timmons,  199  U.  S.  391  (1905).  —  Ed. 


UNITED    STATES   V.    EVANS.  91 

during  the  trial  to  the  exclusion  of  certain  evidence.  This  right 
to  appeal  was  claimed  under  §  935  of  the  code,  which  reads  as 
follows :  — 

"  In  all  criminal  prosecutions  the  United_States  or  ^he  District 
of  ColumbiaTas  the  casg-ma^rgeTsFairiiave  the  same  right  of 
"appeal  as  is  given  to  the  defendant,  including  the  right  to  a  bill 
of  exception_s;  pro^-ided,  that  if  on  such  appeal  it  shall  be  found 
tTia-Ttherewas  error  in  the  rulings  of  the  court  during  the  trial,  a 
verdict  in  favor  of  the  defendant  shall  not  be  set  aside." 

The  appeal  was  dismissed  for  want  of  jurisdiction,  and  the  case 
brought  here  on  certiorari. 

The  case  of  United  States  v.  Sanges,  144  U.  S.  310,  reiterated 

thejthen_  well  settled  rule  that  the  right  of  review  in  criminal 

"cases^  was  limited  to  rc\ic\v  at  ilif  iii>tau<'o  of  the  defendant  after 

a  decision TnTaVor  of  the  Cioveniuient.     United  States  v.  Dickin- 

~son,  213  U.  S.  92. 

In  United  States  v.  Evans,  28  App.  D.  C.  264,  under  §  935  of 
the  code,  the  right  was  exercised  without  question  in  a  case  where 
an  indictment  had  been  set  aside  on  demurrer,  and  Chief  Justice 
Shepard  in  delivering  the  opinion  of  the  court  in  this  case  (30 
App.  D.  C.  58),  said:  — 

"  It  may  be  assumed  also  that  such  a  writ  of  error  would  lie 
to  review  a  judgment  arresting  a  judgment  of  conviction  for  the 
insufficiency  of  the  indictment,  or  one  sustaining  a  special  plea 
in  bar,  when  the  defendant  has  not  been  put  in  jeopardy." 

But  the  Chief  Justice  further  said  that  it  was  contended  by 
appellants  that  a  writ  of  error  lies  also  "^upon  a  judgment  where 
there  has  been  a  verdict  of  not  guilty,  not,  however,  to  obtain 
^a  reversal  of  that  judgment,  but  to  obtain  an  opinion  upon  ex- 
ceptions taken  at  the  trial  that  may  serve^as  a  rule  of  obser- 
vance in  cases  that  may  hereafter  arise." 

But  this  contention  was  rejected  l)y  the  court  in  view  of  the 
objectionable  consequences  that  would  result  from  such  an  exer- 
cise of  jurisdiction.     "  The  appellee  in  such  a  case,  having  been 
_freed  from  further  prosecution  1)\-  th<'  \-er(lict  in  his  favor,  has 
no  interest  in  the  question  that  may  be  determined  in  the  pro- 
"^ceedings  on  appeal  and  may  not  even  appear.     Nor  can  his  appear- 
ance  be   enforced.     Without   opposing,  argument,   which   is   so 
important  to  the  attainment  of  a  correct  conclusion,  the  court 
is  called  upon  to  lay  down  rules  that  may  be  of  vital  interest  to 
persons  who  may  hereafter  be  brought  to  trial.     All  such  persons 
'  are  entilled  to  be  heard  on  all  questions  affecting  their  rights, 


92  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

and  it  is  a  harsh  rule  that  would  bind  them  by  decisions  made  in 
what  are  practically  '  moot  '  ctH'^,  where  opposing  views  have 
not  been  presented." 

It  wasTn  the^hght  of  these  considerations  that  the  act  of  Con- 
gress of  March  2,  1907,  34  Stat.  1246,  c.  2564,  was  subjected  to 
the  limitations  therein  contained.  United  States  v.  Keitel,  211 
U.  S.  370,  398;  United  States  v.  Mason,  213  U.  S.  115. 

By  the  constitutions  of  several  of  the  States  the  justices  o£the_^ 
highest  J udiciainfriTTiTiials^aro  obliged  to  give  their  opinions  on 
important  questions  of  law  upon  solemn  occasions,  when  required 
by  either  branch  of  the  legislature,  or  the  governor  or  governor 
and  council,  and  there  are  many  interesting  discussions  in  the 
state  reports,  as  well  as  in  articles  by  the  law  writers,  in  respect 
of  such  a  provision.^ 

But  no  such  requirement  obtains  in  federal  jurisprudence. 

Such  a  provision  was  suggested  in  the  Federal  Constitutional 
Convention,  but  disappeared  in  the  Committee  on  Detail. 

In  1793  President  Washington  sought  to  take  the  opinion  of 
the  judges  of  the  Supreme  Court  of  the  United  States  as  to  various 
questions  arising  under  our  treaties  with  France,  but  they  declined 
to  respond.  Marshall  thus  speaks  of  the  matter  in  his  Life  of 
Washington :  — 

"About  this  time  it  is  probable  that  the  difficulties  felt  by  the 
judges  of  the  Supreme  Court  in  expressing  their  sentiments  on 
the  points  referred  to  them  were  communicated  to  the  Executive. 
Considering  themselves  as  merely  constituting  a  legal  tribunal 
for  the  decision  of  controversies  brought  before  them  in  legal 
form,  tlicso  gentlemen  deemed  it  improper  to  enter  the  field  oT' 
politics  l)y  declaring  their  opinion  on  questions  not  growing  out_ 
of_the  case  licfoie  tlicm."     Story  on  the  Constitution,  §  1571.  , 

It  was  long  ago  held  by  this  court  that  the  discharge  of  such    | 
a  function  was  not  an  exercise  of  judicial  j)ower.     United  States 
V.  Ferreira,  13  How.  40,  note  on  page  52;  Hayburn's  Case,  2  Dall. 
409;   see  note,  pp.  410,  411,  412,  413,  414.     And  that  ruling  sus- 
tains the  conclusion  of  the  Court  of  Appeals,  in  the  matter  of  the  _ 
construction  of  this  act  to  which  the  opinion  is  confined. 

Writ  of  certiorari  quashed. 

1  Thayer  on  Advisory  Opinions,  Legal  Essays,  43;  Dubuque,  The  Duty 
of  Judges  as  Constitutional  Advisors,  24  Amer.  Law  Review,  369;  Emery, 
C.  J.,  2  Maine  Law  Review,  1;  Cases  collected  in  6  Amer.  &  Eng.  Cycl.  (2d 
ed.)  1065.  And  see  103  Maine,  506,  and  especially  opinion  of  Savage,  J.  — 
Rep. 


MUSKRAT   V.    UNITED    STATES.  93 

MUSKRAT  V.   UNITED   STATES. 

Supreme  Court  of  the  United  States.     1911. 

[219  U.  S.  346.]  • 

Appeals  from  the  Court  of  Claims. 

These  were  cases  based  upon  an  act  of  Congress  passed  March 
1,  1907  (34  U.  S.  Stats,  at  Large,  c.  2285,  pp.  1015,  1028),  which, 
among  other  things,  especially  provided  that  certain  persons 
should  be  empowered  to  institute  suits  in  the  Court  of  Claims,  in 
order  to  test  the  validity  of  certain  acte-of  Congress,  and  that_ 
there  should  be_an  ax)peal  to  the  Sui)reme  Court  of  the  United 
States.  Suits  having  been  brought  accordingly  in  the  Court  of 
Claims,  and  that  court  having  sustained  the  validity  of  the  acts 
and  having  dismissed  the  petitions  (44  Ct.  of  Claims,  137,  283), 
these  appeals  were  taken. 

John  J.  Hem-phill,  William  H.  Robeson,  and  Daniel  B.  Henderson, 
with  whom  Frank  I.  Boudinot  was  on  the  brief,  for  appellants. 

W.  W.  Hastings  for  the  Cherokee  Nation. 

S.  T.  Bledsoe  and  Evans  Browne  submitted  a  brief,  by  leave  of 
.the  court,  as  amid  curiae,  on  behalf  of  certain  full  blood  Choctaw 
and  Cherokee  allottees. 

Day,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  first  question  in  these  cases,  as  in  others,  involves  the  juris- 
diction of  this  court,  to  entertain  the  proceeding,  and  that  de~ 
pends  upon  whether  the  Xurisdlctlon  conferred  is  within  the  jjower 
of  Congress,  having  in  view  the  limitations  of  the  judicial  power 
as  established  by  the  Constitution  of  the  United  States. 

Section  1  of  Article  III  of  the  Constitution  provides: 

"  The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court  and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish." 

Section  2  of  the  same  Article  provides: 

"  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States, 
"and  treaties  made,  or  which  shall  be  made,  imder  their  authority; 
—  to  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls;  —  to  all  cases  of  admiralty  and  maritime  juris(li(ti(jn;  — 
\o  controversies~to  whTc?i~fKe  Unitr^F^atc^  shall  be  a  party;  to 
controversiesT)e'tweeii  two  or  more  Statf-;  —  between  a  ^^tatje 
and  citizens  of^ another  StaM; — between   citiz'ii-   (jf   dilterent_ 

'  The  statement  here  presented  has  been  framed  on  the  opinion.  —  En. 


94  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

States;  —  between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  states,  citizens  or  subjects."  .  .  . 

In  1793,  by  direction  of  the  President,  Secretary  of  State  Jeffer- 
son addressed  to  the  Justices  of  the  Supreme  Court  a  communica- 
tion soliciting  their  views  upon  the  question  whether  their  advice 
to  the  executive  would  be  available  in  the  solution  of  important 


questions  of  the  construction  of  treaties,  laws  of  nations  and  laws 
of  the  land,  which  the  Secretary  said  were  often  presented  under 
circumstances  which  "  do  not  give  a  cognizance  of  them  to  the  tribu^ 
nals  of  the  country."  The  answer  to  the  question  was  postponed 
until  the  subsequent  sitting  of  the  Supreme  Court,  when  Chief 
Justice  Jav  and  his  associates  answered  to  President  Washington 
that  in  consideration  of  the  lines  of  separation  drawn  by  the  Con- 
strtuir6n~"betw'een  the  three  depart niciils  of  government,  and 
being  judges  of  a  court  of  last  resort,  afforded  strong  arguments 
against  the  propriety  of  extrajudicially  deciding  the  questions^ 
~allnded~to,'and  expressing  the  view  that  the  power  given  by  the 
Constitution  to  the  President  of  calling  on  heads  of  departments 
ioT  opinions  "  seems  to  have  been  purposely,  as  well  as  expressl;^^, 
united  to  the  executive  departments/'  Corres£ondence^&_ Public 
Papers  of  John  Jay,  vol.  3,  p.  486. 

The  subject  underwent  a  complete  examination  in  the  case  of 
Gordon  v.  United  States,  reported  in  an  appendix  to  117  U.  S.  697, 
in  which  the  opinion  of  Mr.  Chief  Justice  Taney,  prepared  by  him 
and  placed  in  the  hands  of  the  clerk,  is  published  in  full.  It  is 
said  to  have  been  his  last  judicial  utterance,  and  the  whole  subject 
of  the  nature  and  extent  of  the  judicial  power  conferred  by  the 
Constitution  is  treated  with  great  learning  and  fulness.  In_  tliat 
caseanaetof  Congress  was  held  invalid  which  undertook  to  confej- 
jurisdiction  upon  the  Court  of  Claims  and  thence  T)y  appeal  to_^ 
this  court,  the  judgment,  however,  not  to  be  paid  until  an  appro- 
priation had  l)een  estimated  therefor  l)y  the  Secretary  of  the 
Treasury.  ... 

In  the  case  of  Baltimore  &  Ohio  R.  R.  Co.  v.  Interstate  Commerce 
Commission,  215  U.  S.  216,  this  court  declined  to  take  jurisdiction 
of  a  case  which  undertook  to  extend  its  appellate  power  to  the  con- 
sideration of  a  case  in  which  there  was  no  judgment  in  the  court 
below.  In  that  case  former  cases  were  reviewed  by  ]Mr.  Chief 
Justice  Fuller,  who  spoke  for  the  court,  and  the  requirement  that 
this  court  adhere  strictly  to  the  jurisdiction,  original  and  appellate, 
conferred  upon  it  by  the  Constitution,  was  emphasized  and  en- 


MUSKRAT   V.    UNITED    STATES.  95 

forced.  It  is  therefore  apparent  that  from  its  earUest  history 
this  court  has  consistently  decHned  to  exercise  any  powers  other 
than'those  whiclTare  strictly  judicial  in  their  nature.  .  .  . 

By  the  express  terms  of  the  Constitution,  the  exercise  of  the 
judicial  power  is  limited  to  "  cases  "  and  "  controversies."  Be- 
yond  this  it  does  not  extend,  and  unless  it  is  asserted  in  a  case  or 
controversy  ^\^thin  the  meaning  of  the  Constitution,  the  power 
to  exercise  it  is  nowhere  conferred. 

What,  then,  does  the  Constitution  mean  in  conferring  this 
judicial  power  with  the  right  to  determine  "  cases  "  and  "  con- 
troversies "  ?  A  "  case  "  was  defined  by  Mr.  Chief  Justice 
Marshall  as  early  as  the  leading  case  of  Marbury  v.  Madison,  1 
Cranch,  137,  to  be  a  suit  instituted-accordrng  to  the  regular  course 
of  judicial  procedure.  And  what  more,  if  anything,  is  meant  in 
the  use  of  the  term  "  controversy  "  ?  That  question  was  dealt 
with  by  Mr.  Justice  Field,  at  the  circuit,  in  the  case  of  In  re  Pacific 
Railway  Commission,  32  Fed.  Rep.  241,  255.  Of  these  terms  that 
learned  Justice  said: 

"  The  judicial  article  of  the  Constitution  mentions  cases  and 
controversies.  The  term  '  controversies,'  if  distinguishable  at  all 
from  '  cases,'  is  so  in  that  it  is  less  comprehensive  than  the  latter, 
and  mcludes  only  suits  ol'  a  civil  nature.  „  Chisholm  v.  Georgia,  2 
Dall.  431,  432;  1  Tu<k.  Bl.  (  oniin.  App.  420,  421.  By  cases  and 
controversies  are  intended  the  claims  of  litigants  brought  before 
the  courts  for  determination  by  such  regular  proceedings  as  are 
established  by  law  or  custom  for  the  protection  or  enforcement  of 
rights,  or  the  prevention,  redress,  or  punishment  of  ^\Tongs. 
"WTienever  the  claim  of  a  party  under  the  Constitution,  laws,  or 
treaties  of  the  United  States  takes  such  a  form  that  the  judicial 
power  is  capable  of  acting  upon  it,  then  it  has  become  a  case.  The 
term  implies  the  existence  of  present  or  possible  adverse  parties 
whose  contentions  are  submitted  to  the  court  for  adjudication." 

The  power  being  thus  limited  to  require  an  application  of  the 
judicial  power  to  cases  and  controversies,  is  the  act  which  under- 
took to  authorize  the  present  suits  to  determine  the  constitutional 
validity  of  certain  legislation  within  the  constitutional  authority 
of  the  court  ?  This  inquiry  in  the  case  before  us  includes  the 
broader  question.  When  may  this  court,  in  the  exercise  of  the. 
judicial  power,  pass  upon  the  constitutional  vahdity  of  an  act  of 
Congress  ?  That  question  has  been  settled  from  the  early  history 
of  the  court,  the  leading  case  on  the  subject  being  Marbury  v. 
Madison,  supra. 


96  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

In  that  case  Chief  Justice  Marshall,  who  spoke  for  the  court, 
was' careful  to  point  out  that  the  right  to  declare  an  act  of  Con- 
gress unconstitutional  could  only  be  exercised  when  a  proper  case 
J)et\vegn  opposing  _parties  was  submitted  for  judicial  determina- 
tionj  that  there  was  no  general  veto  power  in  fhe  court  upon 
the  legislation  of  Congress;  and  that  the  authority  to  declare  an 
act  unconstitutional  sprung  from  the  requirement  that  the  court, 
in  administering  the  law  and  pronouncing  judgment  between 
the  parties  to  a  case,  and  choosing  between  the  requirements  of  the 
fundamental  law  established  by  the  people  and  embodied  in  the 
Constitution  and  an  act  of  the  agents  of  the  people,  acting  under 
authority  of  the  Constitution,  should  enforce  the  Constitution 
as  the  supreme  law  of  the  land.  The  Chief  Justice  demonstrated, 
in  a  manner  which  has  been  regarded  as  settling  the  question, 
that  with  the  choice  thus  given  between  a  constitutional  require- 
ment and  a  conflicting  statutorj^  enactment,  the  plain  duty  of 
the  court  was  to  follow  and  enforce  the  Constitution  as  the  supreme 

law  established  by  the  people.      And  the  court  recognized,  in 

Marbury  v.  Madison  and  subsequent  cases,  that  the  exercise  of 
this  great  power  "could  only  be  invoked  in  cases  which  came  regu- 
larl}^  before  the  courts  for  determination,  for,  said  the  Chief 
Justice,  in  Osborn  v.  Bank  of  United  States,  QTVlieat.  819,  speaking 
of  the  third  Article  of  the  Constitution  conferring  judicial  power: 

"  This  clause  enables  the  judicial  department  to  receive  juris- 
diction to  the  full  extent  of  the  Constitution,  laws,  and  treaties  of 
the  United  States,  when  any  question  respecting  them  shall  assume 
such  a  form  that  the  judicial  power  is  capable  of  acting  on  it. 
That  power  is^ capable  of  acting  only  when  the  subject  is  submitted 
to  it  by  a  party  who  asserts  his  rights  in  the  form  prescribed  by 
law.  It  then  becomes  a  ca^c,  and  the  Constitution  declares  that 
the  judicial  power  shall  extend  to  all  cases  arising  under  the  Con- 
stitution, laws,  and  treaties  of  the  United  States.  ..." 

Applying  the  principles  thus  long  settled  by  the  decisions  of 
this  court  to  the  act  of  Congress  undertaking  to  confer  jurisdiction 
in  this  case,  we  find  that  William  Brown  and  Levi  B.  Gritts,  on 
their  own  behalf  and  on  behalf  of  all  other  Cherokee  citizens 
having  like  interest  in  the  property  allotted  under  the  act  of  July 
1,  1902,  and  David  Muskrat  and  J.  Henry  Dick,  for  themselves 
and  representatives  of  all  Cherokee  citizens  enrolled  as  such  for 
allotment  as  of  September  1,  1902,  are  authorized  and  empowered 
to  institute  suits  in  the  Court  of  Claims  to  determine  the  validity 
of  acts  of  Congress  passed  since  the  act  of  July  1,  1902,  in  so  far 


MUSKRAT  V.    UNITED    STATES.  97 

as  the  same  attempt  to  increase  or  extend  the  restrictions  u^on 
alienation,  encumbrance,  or  the  right  to  lease  the  allotments  of 
lancls  of  Cherokee  citizens,  or  to  increase  the  number  of  persons 
entitled  to  share  in  the  final  distribution  of  lancls  and  funds  of  the 
^Cherokoes  beyond  those  enrolled  for  allotment  as  of  September  1, 
1902,  and  provided  for  in  the  said  act  of  July  1,  1902. 

The  jurisdiction  was  given  for  that  purpose  first  to  the  Court 
of  Claims  and  then  upon  appeal  to  this  court.  That  is,  the  object 
and  purpose  of  the  suit  is  wholly  comprised  in  the  determination 


of  the  constitutional  validity  of  certain  acts  of  Congress;    and 
furthermore,  m  the  last  para^apR  of  tlie  section,  should  a  judg- 

"^ffiertt  be  rendered  in  the  Court  of  Claims  or  this  court,  denying 
the  constitutional  validity  of  such  acts,  then  the  amount  of  com- 
pensation to  be  paid  to  attorneys  employed  for  the  purpose  of 
testing  the  constitutionality  of  the  law  is  to  be  paid  out  of  funds 
in  the  Treasury  of  the  United  States  belonging  to  the  beneficiaries, 
the  act  having  ])n\  i<.u-ly  provid-d  that  The  I'liited  States  should 
be  made  a  party  and  the  Attorney  General  be  charged  with  the 
defense  of  the  suits. 

It  is  therefore  evident  that  there  is  neither  more  nor  less  in  this 
procedure  than  an  attenii  )t  tn  i)i<)\idefor  a  judicial  determination, 
final  m  this  court,  of  ihc  c  -n-tituiioiial  vaUdity  of  an  act  of  Con-"" 
^^SS.  .  .  .  TIm'  ii'_'!.i  \n  (icclarc  a  law  uiifoii-titutional  afi-cs 
because  an  act  of  Congress  relied  upon  by  one  or  the  other  of  such 
parties  in  determining  their  rights  is  in  conflict  with  the  funda- 
mental law.  The  exercise  of  this,  the  most  important  and  delicate 
duty  of  this  court,  Ts  iK.rLnxaii  to  it  n=  a  body  with  revisory  power 
over  the  action  of  Cdnurc—,  Imt  l)ir;,uH;  tho  rights  of  thf^  litigants' 
in  justiciable  CMiitr-M\-i'i-^li-  i-ciiuiic  tin-  cnwyi  to  cImh.^c  l,ctw(rii 
the  fundamental'Taw  "ami  a  law  purporting  to  be  enacted  within 

constitutional  authority,  but  in  fa  ft  beyond  the  power  delegated 
to  fBe legislative  branch  of  th.  ( lovemment.  This  attempt  to 
obtain  a  judicial  declaration  of  the  vaUdity  of  the  act  of  Congress 
is  not  presented  in  a  "  case  "  or  "  controversy,"  to  which,  under 
the  Constitution  of  the  United  States,  the  judicial  power  alone 
extends.  It  is  true  the  Uuitcil  Statc-^  i-  madf  a  defendant  to  this 
action,  but  it  has  no  iiui  ir  t  a^lvrr-''  tm  iIk-  riaimants.  The 
object  is  not  to  assert  a  i)r(>j)(riy  riuht  a-  aii ain-t  the  Government, 
or  to  demand  compensation  for  alleged  \\Tongs  because  of  action 
upon  its  part.  The  whole  purpose  of  the  law  is  to.determine  the 
constitutional  validity  of  tins  class  of^Jegislation,  in  a  suit  not 
arising  betweeii-Daxtie&.-CQiit:erning  a  property  right  necessarily 


98  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

involved  in  the  decision  in  question,  but^in_a^roceeding  against 
the  Government  in  its  sovereign  capacity,  and  concerning  which 
the  only  judgment  required  is  to  settle  the  doubtful  character 
of  the  legislation  in  question.  Such  judgment  will  not  conclude 
private  parties,  when  actual  litigation  brings  to  the  court  the 
question  of  the  constitutionality  of  such  legislation.  In  a  legal 
sense  the  judgment  could  not  be  executed,  and  amounts  in  fact 
to  no  more  than  an  expression  of  opinion  upon  the  validity  of  the 
acts  in  question.  Confining  the  jurisdiction  of  this  court  within 
the  limitations  conferred  by  the  Constitution,  which  the  court 
has  hitherto  been  careful  to  observe,  and  whose  boundaries  it  has 
refused  to  transcend,  we  think  the  rnnp-ress,  jn  the  act  of  March 
1,  1907,  exceeded  the  limitations  of  legislative  authority,  so  far  as 
it  required  of  this  court  action  not  judicial  in  its  nature  within  the 
meaning  of  the  Constitution.  ... 

The  questions  involved  in  this  proceeding  as  to  the  validity  ot 
the  legislation  may  arise  in  suits  between  individuals,  and  when 
they  do  and  are  properly  brought  before  this  court  for  considera- 
tion they,  of  course,  must  be  determined  in  the  exercise  of  its 
judicial  functions.  For  the  reasons  we  have  stated,  we  are  con- 
strained to  hold  that  these  actions  present  no  justiciable  con- 
troversy within  the  authority  of  the  court,  acting  within  the 
limitations  of  the  Constitution  under  which  it  was  created.  As 
Congress,  in  passing  this  act  as  a  part  of  the  plan  involved,  evi- 
dently intended  to  provide  a  review  of  the  judgment  of  the  Court 
of  Claims  in  this  court,  as  the  constitutionality  of  important 
legislation  is  concerned,  we  think  the  act  cannot  be  held  to  intend 
to  confer  jurisdiction  on  that  court  separately  considered.  Con- 
nolly V.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  565;  Employers' 
Liability  Cases,  207  U.  S.  463. 

The  judgments  will  be  reversed  and  the  cases  remanded  to  the  Court 
of  Claims,  with  directions  to  dismiss  the  petitions  for  want  of 
jurisdiction. 


PACIFIC    STATES   TELEPHONE    V.    OREGON.  99 

PACIFIC  STATES  TELEPHONE  AND  TELEGRAPH  CO. 

V.  OREGON. 
Supreme  Court  of  the  United  States.     1912. 
[223  United  Slates,  118.]  ^ 
Error  to  the  Supreme  Court  of  the  State  of  Oregon. 
E.  S.  Pillshury,  ^\ith  whom  Oscar  Sutro  was  on  the  brief    for 
plamtiff  m  error.     John  J.  Dye  and  Addison  C.  Harris,  submitted 
a  brief  as  amia  curiae,  by  leave  of  the  court,  on  the  same  side 

A  M.  Crawford,  George  Fred  Williams,  and  Jackson  H.  Ralston 
with  whom  S.  H.  Van  Winkle,  W.  S.  U'Ren,  and  C.  E.  S.  Wood 
were  on  the  brief,  for  defendant  in  error.  A  brief  on  the  same 
side  was  filed  hy  George  H.  Shibley,  Director  of  the  American  Bureau 
of  Political  Research  of  People's  Rule  League  of  .\merica,  Robert 
L.  Owen,  Chairman  of  the  National  Committee,  People's  Rule 
League  of  America,  and  J.  Henry  Games  as  counsel  for  the  State 
of  Oregon;  and  a  separate  brief  supporting  the  defendant  in  error 
was  filed  by  George  Fred  Williams  as  counsel  for  the  States  of 
California,  Arkansas,  Colorado,  South  Dakota,  and  Nebraska. 
White,  C.  J.,  delivered  the  opinion  of  the  court. 

,7,^^TvT  '"  ^^'''    ^"^  ^'^^^^  ^'"^^"^^  amended  its  constitution 
(Art.  1\ ,  §1).     This  amendment  while  retaining  an  existing  clause 
vesting  the  exclusive  legislative  power  in  a  General  Assembly  con- 
sisting of  a  senate  and  house  of  representatives  added  to  that 
provision  the  following:    "  But  the  people  reserve  to  themselves 
power  to  propose  laws  and  amendments  to  the  constitution  and 
to  enact  or  reject  the  same  at  the  polls,  independent  of  the  legis- 
lative assembly,  and  also  reserve  power  at  their  own  option  to 
approve  or  reject  at  the  polls  any  act  of  the  legislative  assembly." 
Specific  means  for  the  exercise  of  the  power  thus  reserved  was 
contained  m  further  clauses  authorizing  both  the  amendment  of 
the  constitution  and  the  enactment  of  laws  to  be  accomplished 
by  the  method  knoT^^l  as  the  initiative  and  that  commonly  re- 
ferred to  as  the  referendum.      As  to  the  first,  the  initiative,  it 
suffices  to  say  that  a  stated  number  of  voters  were  given  the  right 
at  any  time  to  secure  a  submission  to  popular  vote  for  approval 
of  any  matter  which  it  was  desired  to  have  enacted  into  law,  and 
providing  that  the  proposition  thus  submitted  when  approved 
by  popular  vote  should  become  the  law  of  the  State.    The  second, 

repZ^ed'-Vr''  "'^'^'^^''^  °^  '^'  P°^°^  «f  ^^^  i^^olved  has  not  been 


100  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

the  referendum,  provided  for  a  reference  to  a  popular  vote,  for 
approval  or  disapproval,  of  any  law  passed  by  the  legislature,  such 
reference  to  take  place  either  as  the  result  of  the  action  of  the 
legislature  itself  or  of  a  petition  filed  for  that  purpose  by  a  specified 
number  of  voters.  .  .   . 

In  1903  (Feb.  24,  1903,  Gen.  Laws  1903,  p.  244)  detailed 
provisions  for  the  carrying  into  effect  of  this  amendment  were 
enacted  by  the  legislature. 

By  resort  to  the  initiative  in  1906  a  law  taxing  certain  classes  of 
corporations  was  submitted,  voted  on  and  promulgated  by  the 
Governor  in  1906  (June  25,  1906,  Gen.  Laws  1907,  p.  7)  as  having 
been  duly  adopted.  By  this  law  telephone  and  telegraph  com- 
panies were  taxed,  by  what  was  qualified  as  an  annual  license, 
two  per  centum  upon  their  gross  revenue  derived  from  business 
done  within  the  State.  Penalties  were  provided  for  non-payment, 
and  methods  were  created  for  enforcing  payment  in  case  of  de- 
linquency. 

The  Pacific  States  Telephone  and  Telegraph  Company,  an 
Oregon  corporation  engaged  in  business  in  that  State,  made  a 
return  of  its  gross  receipts  as  required  by  the  statute  and  was 
accordingly  assessed  two  per  cent  upon  the  amount  of  such  return. 
The  suit  which  is  now  before  us  was  commenced  by  the  State  to 
enforce  pajoncnt  of  this  assessment  and  the  statutory  penalties 
for  delinquency.  The  petition  alleged  the  passage  of  the  taxing 
law  by  resort  to  the  initiative,  the  return  made  by  the  corporation, 
the  assessment,  the  duty  to  pay  and  the  failure  to  make  such 
payment. 

The  answer  of  the  corporation  contained  twenty-nine  para- 
graphs. .  .  .  They  all,  in  so  far  as  they  relied  upon  the  Con- 
stitution of  the  United  States,  rested  exclusively  upon  an  alleged 
infirmity  of  the  powers  of  government  of  the  State  begotten  by 
the  incorporation  into  the  state  constitution  of  the  amendment 
concerning  the  initiative  and  the  referendum. 

The  answer  v/as  demurred  to  as  stating  no  defense.  The  de- 
murrer was  sustained,  and  the  defendant  electing  not  to  plead 
further,  judgment  went  against  it  and  that  judgment  was  affirmed 
by  the  Supreme  Court  of  Oregon.     (53  Oregon,  162.)  .  .  . 

The  assignments  of  error  filed  on  the  allowance  of  the  writ  of 
error  are  numerous.  The  entire  matters  covered  by  each  and  all 
of  them  in  the  argument,  however,  are  reduced  to  six  propositions, 
which  really  amount  to  but  one,  since  they  are  all  based  upon  the 
single  contention  that  the  creation  b}^  a  State  of  the  power  to 


PACIFIC    STATES   TELEPHONE    V.    OREGON.  101 

legislate  by  the  initiative  and  referendum  causes  the  prior  lawful 
state  government  to  be  bereft  of  its  lawful  character  as  the  result 
of  the  provisions  of  §  4  of  Art.  IV  of  the  Constitution,  that  "  The 
United  States  shall  guarantee  to  every  State  in  this  Union  a 
Republican  Form  of  Government,  and  shall  protect  each  of  them 
against  Invasion;  and  on  Application  of  the  Legislature,  or  of  the 
Executive  (when  the  Legislature  cannot  be  convened),  against 
domestic  Violence."  This  being  the  basis  of  all  the  contentions 
the  case  comes  to  the  single  issue  whether  the  enforcement  of  that 
provision,  because  of  its  political  character,  is  exclusively  com- 
mitted to  Congress  or  is  judicial  in  its  character. 

In  other  words,  the  propositions  each  and  all  proceed  alone 
upon  the  theory  that  the  adoption  of  the  initiative  and  referendum 
destroyed  all  government  republican  in  form  in  Oregon.  This 
being  so,  the  contention,  if  held  to  be  sound,  would  necessarily 
affect  the  validity,  not  only  of  the  particular  statute  which  is 
before  us,  but  of  every  other  statute  passed  in  Oregon  since  the 
adoption  of  the  initiative  and  referendum.  And  indeed  the  prop- 
ositions go  further  than  this,  since  in  their  essence  they  assert  that 
there  is  no  governmental  function,  legislative  or  judicial,  in  Oregon, 
because  it  cannot  be  assumed,  if  the  proposition  be  well  founded,' 
that  there  is  at  one  and  the  same  time  one  and  the  same  govern- 
ment which  is  republican  in  form  and  not  of  that  character. 

Before  immediately  considering  the  text  of  §  4  of  Art.  IV,  in 
order  to  uncover  and  give  emphasis  to  the  anomalous  and  destruc- 
tive effects  upon  both  the  state  and  national  governments  which 
the  adoption  of  the  proposition  implies,  as  illustrated  by  what  we 
have  just  said,  let  us  briefly  fix  the  inconceivable  expansion  of  the 
judicial  power  and  the  ruinous  destruction  of  legislative  authority 
in  matters  purely  political  which  would  necessarily  be  occasioned 
by  giving  sanction  to  the  doctrine  which  underlies  and  would  be 
necessarily  involved  in  sustaining  the  propositions  contended  for. 
First.  That  however  perfect  and  absolute  may  be  the  establish- 
ment and  dominion  in  fact  of  a  state  government,  however  com- 
plete may  be  its  participation  in  and  enjojTnent  of  all  its  powers 
and  rights  as  a  member  of  the  national  Government,  and  however 
all  the  departments  of  that  Government  may  recognize  such  state 
government,  nevertheless  every  citizen  of  such  State  or  person 
subject  to  taxation  therein,  or  owing  any  duty  to  the  established 
government,  may  be  heard,  for  the  purpose  of  defeating  the  pay- 
ment of  such  taxes  or  avoiding  the  discharge  of  such  duty,  to 
assail  in  a  court  of  justice  the  rightful  existence  of  the  State. 


102  LEGISLATIVE,    EXECUTIVE,    AND   JUDICIAL    POWERS. 

Second  As  a  result,  it  becomes  the  duty  of  the  courts  of  the 
United  States,  where  such  a  claim  is  made,  to  examine  as  a  jus- 
ticiable issue  the  contention  as  to  the  illegal  existence  of  a  State 
and  if  such  contention  be  thought  well  founded  to  disregard  the 
existence  in  fact  of  the  State,  of  its  recognition  by  all  of  the  de- 
partments of  the  Federal  Government,  and  practically  award  a 
decree  absolving  from  all  obligation  to  contribute  to  the  support 
of  or  obey  the  laws  of  such  established  state  government.  And 
as  a  consequence  of  the  existence  of  such  judicial  authority  a  power 
in  the  judiciary  must  be  implied,  unless  it  be  that  anarchy  is  to 
ensue,  to  build  by  judicial  action  upon  the  ruins  of  the  previously 
established  government  a  new  one,  a  right  which  by  its  very 
terms  also  implies  the  power  to  control  the  legislative  department 
of  the  Government  of  the  United  States  in  the  recognition  of  such 
new  government  and  the  admission  of  representatives  therefrom, 
as  well  as  to  strip  the  executive  department  of  that  government 
of  its  otherwise  la\\'ful  and  discretionary  authority. 

Do  the  provisions  of  §  4,  Art.  IV,  bring  about  these  strange, 
far-reaching  and  injurious  results  ?  That  is  to  say,  do  the  pro- 
visions of  that  Article  obliterate  the  division  between  judicial 
authority  and  legislative  power  upon  which  the  Constitution 
rests  ?  In  other  words,  do  they  authorize  the  judiciary  to  sub- 
stitute its  judgment  as  to  a  matter  purely  political  for  the  judg- 
ment of  Congress  on  a  subject  committed  to  it  and  thus  overthrow 
the  Constitution  upon  the  ground  that  thereby  the  guarantee  to 
the  States  of  a  government  republican  in  form  may  be  secured, 
a  conception  which  after  all  rests  upon  the  assumption  that  the 
States  are  to  be  guaranteed  a  government  republican  in  form  by 
destroying  the  very  existence  of  a  government  republican  in  form 
in  the  Nation. 

We  shall  not  stop  to  consider  the  text  to  point  out  how  absolutely 
barren  it  is  of  support  for  the  contentions  sought  to  be  based  upon 
it,  since  the  repugnancy  of  those  contentions  to  the  letter  and 
spirit  of  that  text  is  so  conclusively  established  by  prior  decisions  of 
this  court  as  to  cause  the  matter  to  be  absolutely  foreclosed.  .  .  .^ 

It  is  indeed  a  singular  misconception  of  the  nature  and  character 
of  our  constitutional  system  of  government  to  suggest  that  the 
settled  distinction  .  .  .  between  judicial  authority  over  justici- 
able controversies  and  legislative  power  as  to  purely  political 
questions  tends  to  destroy  the  duty  of  the  judiciary  in  proper 

1  The  passage  here  omitted  dealt  with  Luther  v.  Borden,  ante,  p.  46  (1848), 
and  Taylor  v.  Beckham,  No.  1,  178  U.  S.  548  (1900).  —  Ed. 


PACIFIC    STATES   TELEPHONE   V.    OREGON.  103 

cases  to  enforce  the  Constitution.  The  suggestion  but  results 
from  faihng  to  distinguish  between  things  which  are  widely  differ- 
ent, that  is,  the  legislative  duty  to  determine  the  political  questions 
involved  in  deciding  w^hether  a  state  government  republican  in 
form  exists,  and  the  judicial  power  and  ever-present  duty  whenever 
it  becomes  necessary  in  a  controversy  properly  submitted  to 
enforce  and  uphold  the  applicable  provisions  of  the  Constitution 
as  to  each  and  every  exercise  of  governmental  power. 

How  better  can  the  broad  lines  which  distinguish  these  two 
subjects  be  pointed  out  than  by  considering  the  character  of  the 
defense  in  this  very  case  ?  The  defendant  company  does  not 
contend  here  that  it  could  not  have  been  required  to  pay  a  license 
tax.  It  does  not  assert  that  it  was  denied  an  opportunity  to  be 
heard  as  to  the  amount  for  which  it  was  taxed,  or  that  there  was 
anything  inhering  in  the  tax  or  involved  intrinsically  in  the  law 
which  violated  any  of  its  constitutional  rights.  If  such  questions 
had  been  raised  they  would  have  been  justiciable,  and  therefore 
would  have  required  the  calling  into  operation  of  judicial  power. 
Instead,  however,  of  doing  any  of  these  things,  the  attack  on  the 
statute  here  made  is  of  a  wholly  different  character.  Its  essen- 
tially political  nature  is  at  once  made  manifest  by  understanding 
that  the  assault  which  the  contention  here  advanced  makes  is  not 
on  the  tax  as  a  tax,  but  on  the  State  as  a  State.  It  is  addressed 
to  the  framework  and  political  character  of  the  government  by 
which  the  statute  levying  the  tax  was  passed.  It  is  the  govern- 
ment, the  political  entity,  which  (reducing  the  case  to  its  essence) 
is  called  to  the  bar  of  this  court,  not  for  the  purpose  of  testing 
judicially  some  exercise  of  power  assailed,  on  the  ground  that  its 
exertion  has  injuriously  affected  the  rights  of  an  individual  because 
of  repugnancy  to  some  constitutional  limitation,  but  to  demand 
of  the  State  that  it  establish  its  right  to  exjst  as  a  State,  repub- 
lican in  form. 

As  the  issues  presented,  in  their  very  essence,  are,  and  have  long 
since  by  this  court  been,  definitely  determined  to  be  poHtical  and 
governmental,  and  embraced  within  the  scope  of  the  powers  con- 
ferred upon  Congress,  and  not  therefore  within  the  reach  of  judi- 
cial power,  it  follows  that  the  case  presented  is  not  within  our 
jurisdiction,  and  the  WTit  of  error  must  therefore  be,  and  it  is, 
dismissed  for  want  of  jurisdiction. 

Dismissed  for  want  of  jurisdiction. 


CHAPTER  II. 

FEDERAL  GOVERNIMENT:  THE  NATION  AND 
THE  STATES. 

CHISHOLM,  Executor,  v.  GEORGIA. 
Supreme  Court  of  the  United  States.     1793. 

[2  Dallas,  419.]  i 

Original  action  of  assumpsit. 

The  Marshal  for  the  District  of  Georgia  having  made  return  of 
service  on  the  Governor  of  Georgia  and  on  the  Attorney  General 
of  the  State,  the  counsel  for  the  plaintiff,  Randolph,  Attorney 
General  of  the  United  States,  moved  that  "  unless  the  State  of 
Georgia  shall,  after  reasonable  previous  notice  of  this  motion, 
cause  an  appearance  to  be  entered  .  .  .  judgment  shall  be  entered 
against  the  said  State,  and  a  writ  of  inquiry  of  damages  shall  be 
awarded." 

And  now  Ingersoll  and  Dallas  presented  a  written  remonstrance 
on  behalf  of  the  State  against  the  exercise  of  jurisdiction,  but  de- 
clined arguing  the  question. 

Randolph,  for  the  plaintiff. 

Iredell,  J.  .  .  .  The  particular  question  then  before  the 
court  is,  will  an  action  of  assumpsit  lie  against  a  State  ?  .  .  .  The 
Attorney  General  must  know  that  in  England  certain  proceedings 
not  inconsistent  with  the  sovereignty  may  take  place  against  the 
Cro^Ti,  but  that  an  action  of  assumpsit  wall  not  he.  .  .  .  The 
Attorney  General  himself  has  taken  some  pains  to  show  that  no 
action  whatever  is  maintainable  against  the  United  States.  .  .  . 

Neither  in  the  State  now  in  question  nor  in  any  other  in  the 
Union  any  particular  legislative  mode,  authorizing  a  compulsory 
suit  for  the  recovery  of  money  against  a  State,  was  in  being  either 
when  the  Constitution  was  adopted  or  at  the  time  the  judicial 
act  was  passed.  .  .  . 

The  only  principles  of  law,  then,  that  can  be  regarded,  are  those 
common  to  all  the  States.  I  know  of  none  such,  which  can  affect 
this  case,  but  those  that  are  derived  from  what  is  properly  termed 

1  An  abbreviated  statement  has  been  presented.  —  Ed. 

104 


CHISHOLM   V.    GEORGIA.  105 

"  the  common  law,"  a  law  which  I  presume  is  the  ground-work  of 
the  laws  in  every  State  in  the  Union,  and  which  I  consider,  so  far 
as  it  is  applicable  to  the  peculiar  circumstances  of  the  country,  and 
where  no  special  act  of  Legislation  controls  it,  to  be  in  force  in 
each  State,  as  it  existed  in  England  (unaltered  by  any  statute)  at  the 
time  of  the  first  settlement  of  the  country.  The  statutes  of  England 
that  are  in  force  in  America  differ  perhaps  in  all  the  States;  and, 
therefore,  it  is  probable  the  common  law  in  each  is  in  some  respects 
different.  But  it  is  certain  that  in  regard  to  anj^  common  law 
principle  which  can  influence  the  question  before  us  no  alteration 
has  been  made  by  any  statute,  which  could  occasion  the  least  mate- 
rial difference,  or  have  any  partial  effect.  No  other  part  of  the 
common  law  of  England,  it  appears  to  me,  can  have  any  reference 
to  this  suljject,  but  that  part  of  it  which  prescril)es  remedies  against 
the  crown.  Every  State  in  the  Union  in  every  instance  where  its 
sovereignty  has  not  been  delegated  to  the  United  States,  I  consider 
to  be  as  completely  sovereign,  as  the  United  States  are  in  respect 
to  the  powers  surrendered.  The  United  States  are  sovereign  as  to 
all  the  powers  of  Government  actually  surrendered:  Each  State 
in  the  Union  is  sovereign  as  to  all  the  powers  reserved.  It  must 
necessarily  be  so,  because  the  United  States  have  no  claim  to  any 
authority  but  such  as  the  States  have  surrendered  to  them:  Of  course 
the  part  not  surrendered  must  remain  as  it  did  before.  The  powers 
of  the  general  Government,  either  of  a  Legislative  or  Executive 
nature,  or  which  particularly  concerns  Treaties  with  Foreign 
Powers,  do  for  the  most  part  (if  not  wholly)  affect  individuals, 
and  not  States:  They  require  no  aid  from  any  State  authority. 
This  is  the  great  leading  distinction  between  the  old  articles  of 
confederation,  and  the  present  constitution.  .  .  . 

If  therefore,  no  new  remedy  be  provided  (as  plainly  is  the  case), 
and  consequently  we  have  no  other  rule  to  govern  us  but  the  prin- 
ciples of  the  pre-existent  laws,  which  must  remain  in  force  till  su- 
perseded by  others,  then  it  is  incumbent  upon  us  to  in(iuire 
whether  previous  to  the  adoption  of  the  Constitution  (which 
period,  or  the  period  of  passing  the  law,  in  respect  to  the  object  of 
this  inquiry,  is  perfectly  equal)  an  action  of  the  nature  like  this 
before  the  Court  could  have  been  maintained  against  one  of  the 
States  in  the  Union  upon  the  principles  of  the  common  law,  which 
I  have  shown  to  be  alone  applicable.  If  it  could,  I  think  it  is 
now  maintainable  here:  If  it  could  not,  I  think,  as  the  law  stands 
at  present,  it  is  not  maintainable;  whatever  opinion  may  be  en- 
tertained, upon  the  construction  of  the  Constitution,  as  to  the 


106  FEDERAL    GO'V'ERXMENT. 

power  of  Congress  to  authorise  such  a  one.  Now  I  presume  it  will 
not  be  denied  that  in  every  State  in  the  Union,  previous  to  the 
adoption  of  the  Constitution,  the  only  common  law  principles  in 
regard  to  suits  that  were  in  any  manner  admissible  in  respect  to 
claims  against  the  State  were  those  which  in  England  apply  to 
claims  against  the  crown;  there  being  certainly  no  other  principles 
of  the  common  law  which,  pre\'ious  to  the  adoption  of  this  Con- 
stitution could,  in  any  manner,  or  upon  any  color,  apply  to  the 
case  of  a  claim  against  a  State  in  its  own  Courts,  where  it  was 
solely  and  completely  sovereign  in  respect  to  such  cases  at  least. 
T\Tiether  that  remedy  was  strictly  appUcable  or  not,  still  I  appre- 
hend there  was  no  other.  The  only  remedy  in  a  case  Uke  that 
before  the  Court,  by  which,  by  any  possibihty,  a  suit  can  be  main- 
tained against  the  croTvn  in  England,  or  could  be  at  any  period 
from  which  the  common  law,  as  in  force  in  America,  could  be  de- 
rived, I  believe  is  that  which  is  called  a  Petition  of  right.  .  .  . 

In  England  even  in  case  of  a  private  debt  contracted  by  the 
King,  in  his  own  person,  there  is  no  remedy  but  by  petition,  which 
must  receive  his  express  sanction,  other^nse  there  can  be  no  pro- 
ceeding upon  it.  If  the  debt  contracted  be  avowedly  for  the  pub- 
He  uses  of  Government,  it  is  at  least  doubtful  whether  that  remedy 
will  lie,  and  if  it  will,  it  remains  afterwards  in  the  power  of  Parlia- 
ment to  provide  for  it  or  not  among  the  current  supplies  of  the 
year.  .  .  . 

I  have  now,  I  think,  estabhshed  the  following  particulars.  — 
1st.  That  the  Constitution,  so  far  as  it  respects  the  judicial  au- 
thority, can  only  be  carried  into  effect  by  acts  of  the  Legislature 
appointing  Courts,  and  prescribing  their  methods  of  proceeding. 
2d.  That  Congress  has  provided  no  new  law  in  regard  to  this  case, 
but  expressly  referred  us  to  the  old.  3d.  That  there  are  no  prin- 
ciples of  theold  law,  to  which  we  must  have  recoiu-se,  that  in  any 
manner  authorise  the  present  suit,  either  by  precedent  or  by  anal- 
ogy.  The  consequence  of  which,  in  my  opinion,  clearly  is  that 
the  suit  in  question  cannot  be  maintained,  nor,  of  course,  the 
motion  made  upon  it  be  compUed  with.  .  .  . 

]My  opinion  being,  that  even  if  the  Constitution  would  admit  of 
the  exercise  of  such  a  power,  a  new  law  is  necessary  for  the  purpose, 
since  no  part  of  the  existing  law  applies,  this  alone  is  sufficient  to 
justify  my  determination  in  the  present  case.  So  much,  however, 
has  been  said  on  the  Constitution,  that  it  may  not  be  improper 
to  intimate  that  my  present  opinion  is  strongly  against  any  con- 
struction of  it,  which  will  admit,  under  any  circumstances,  a  com- 


CHISHOLM   V.    GEORGIA.  107 

pulsive  suit  against  a  State  for  the  recoven'  of  money.  I  think 
every  word  in  the  Constitution  may  have  its  full  effect  without 
invohnng  this  consequence,  and  that  nothing  but  express  words, 
or  an  insurmountable  impUcation  (neither  of  which  I  consider  can 
be  found  in  this  case)  would  authorise  the  deduction  of  so  high  a 
power.  .  .  , 

Blair,  J.  .  .  .  The  Constitution  of  the  United  States  is  the 
only  fountain  from  which  I  .shall  draw;  the  onh'  authority  to  which 
I  shall  appeal.  \Miatever  be  the  true  language  of  that.,  it  is  obli- 
gatory upon  even*'  member  of  the  Union:  for,  no  State  could  have 
become  a  member,  but  by  an  adoption  of  it  by  the  people  of  that 
State.  What  then  do  we  find  there  requiring  the  submission  of 
indi\adual  States  to  the  judicial  authority  of  the  United  States  ? 
This  is  expressly  extended,  among  other  things,  to  controversies 
between  a  State  and  citizens  of  another  State.  Is  then  the  case 
before  us  one  of  that  description  ?  Undoubtedly  it  is,  unless 
it  may  be  a  sufficient  denial  to  saj'  that  it  is  a  controversy'  be- 
tween a  citizen  of  one  State  and  another  State.  Can  this  change 
of  order  be  an  essential  change  in  the  thing  intended  ?  And  is 
this  alone  a  sufficient  ground  from  which  to  conclude  that  the 
jurisdiction  of  this  Court  reaches  the  case  where  a  State  is  Plain- 
tiff, but  not  where  it  is  Defendant  ?  In  this  latter  case,  should 
any  man  be  asked,  whether  it  was  not  a  controversy  between  a 
State  and  citizen  of  another  State,  must  not  the  answer  be  in  the 
affirmative  ?  A  chspute  between  A.  and  B.  is  surely  a  chspute 
between  B.  and  A.  Both  cases,  I  have  no  doubt,  were  intended; 
and  probably  the  State  was  first  named,  in  respect  to  the  dignity 
of  a  State.  .  .  . 

If  a  State  may  be  brought  before  this  Court,  as  a  Defendant, 
I  see  no  reason  for  confining  the  Plaintiff  to  proceed  b^'  way  of 
petition;  indeed  there  would  even  seem  to  be  an  impropriety  in 
proceeding  in  that  mode.  When  sovereigns  are  sued  in  their  own 
Courts,  such  a  method  may  have  been  estabfished  as  the  most 
respectful  form  of  demand ;  but  we  are  not  now  in  a  State  Court ; 
and  if  sovereignty  be  an  exemption  from  suit  in  any  other  than 
the  sovereign's  own  Courts,  it  follows  that  when  a  State,  by  adopt- 
ing the  Constitution,  has  agreed  to  be  amenable  to  the  judicial 
power  of  the  United  States,  she  has,  in  that  respect,  given  up  her 
right  of  sovereignty.  .  .  . 

Farther  opportunity  of  appearing  to  defend  the  suit  ought  to 
be  given.  The  conditional  order  moved  for  .  .  .  seems  to  me  to 
be  a  very  proper  one.  .  .  . 


108  FEDERAL   GOVERNMENT. 

Wilson,  J.  .  .  .  To  the  Constitution  of  the  United  States  the 
term  sovereign  is  totally  unknown.  There  is  but  one  place  where 
it  could  have  been  used  with  propriety.  But,  even  in  that  place 
it  would  not,  perhaps,  have  comported  with  the  delicacy  of  those 
who  ordained  and  established  that  Constitution.  They  might 
have  announced  themselves  "  sovereign  "  people  of  the  United 
States.  .  .  . 

Our  national  scene  opens  with  the  most  magnificent  object 
which  the  nation  could  present.  "  The  people  of  the  United 
States  "  are  the  first  personages  introduced.  Who  were  those 
people  ?  They  were  the  citizens  of  thirteen  States,  each  of  which 
had  a  separate  Constitution  and  Government,  and  all  of  which 
were  connected  together  by  articles  of  confederation.  To  the 
purposes  of  public  strength  and  felicity,  that  confederacy  was 
totally  inadequate.  A  requisition  on  the  several  States  termi- 
nated its  Legislative  authority:  Executive  or  Judicial  authority 
it  had  none.  In  order  therefore,  to  form  a  more  perfect  union, 
to  establish  justice,  to  ensure  domestic  tranquility,  to  provide  for 
common  defence,  and  to  secure  the  blessings  of  liberty,  those 
people,  among  whom  were  the  people  of  Georgia,  ordained  and 
established  the  present  Constitution.  By  that  Constitution  leg- 
islative power  is  vested,  executive  power  is  vested,  judicial  pow^r 
is  vested. 

The  question  now  opens  fairly  to  our  view,  could  the  people  of 
those  States,  among  whom  were  those  of  Georgia,  bind  those 
States,  and  "Georgia  among  the  others,  by  the  legislative,  execu- 
tive, and  judicial  power  so  vested  ?  If  the  principles,  on  which 
I  have  founded  myself,  are  just  and  true;  this  question  must  un- 
avoidably receive  an  affirmative  answer.  If  those  States  were 
the  work  of  those  people;  those  people,  and  that  I  may  apply  the 
case  closely,  the  people  of  Georgia,  in  particular,  could  alter,  as 
they  pleased,  their  former  work :  To  any  given  degree,  they  could 
diminish  as  well  as  enlarge  it.  Any  or  all  of  the  former  State 
powers,  they  could  extinguish  or  transfer.  The  inference  which 
necessarily  results  is  that  the  Constitution  ordained  and  estab- 
lished by  those  people,  and,  still  closely  to  apply  the  case,  in 
particular  by  the  people  of  Georgia,  could  vest  jurisdiction  or 
judicial  power  over  those  States  and  over  the  State  of  Georgia  in 
particular. 

The  next  question  under  this  head  is  —  Has  the  Constitution 
done  so  ?  .  .  . 


CHISHOLM   V.    GEORGIA.  109 

"  The  judicial  power  of  the  United  States  shall  extend  to  con- 
troversies between  two  States."  ^  Two  States  are  supposed  to  have 
a  controversy  between  them:  This  controversy  is  supposed  to  be 
brought  before  those  vested  with  the  judicial  power  of  the  United 
States:   Can  the  most  consummate  degree  of  professional   inge- 
nuity devise  a  mode  by  which  this  "  controversy  between  tv/o 
States  "  can  be  brought  before  a  Court  of  law;  and  yet  neither  of 
those  States  be  a  Defendant  ?    "  The  judicial  power  of  the  United 
States  shall  extend  to  controversies  between  a  State  and  citizens 
of  another  State.^'    Could  the  strictest  legal  language;  could  even 
that  language,  which  is  peculiarly  appropriated  to  an  art,  deemed, 
by  a  great  master,  to  be  one  of  the  most  honorable,  laudable,  and 
profitable  things  in  our  law;    could  this  strict  and  appropriated 
language,  describe,  with  more  precise  accuracy,  the  cause  now 
depending   before   the  tribunal  ?      Causes,  and  not  parties  to 
causes,  are  weighed  b}^  justice,  in  her  equal  scales:  On  the  former 
solely,  her  attention  is  fixed:  To  the  latter,  she  is,  as  she  is  painted, 
blind.  .  .  . 

The  .  .  .  inference  is  that  the  action  lies. 

CusHiNG,  J.  .  .  .  The  point  turns  not  upon  the  law  or  prac- 
tice of  England,  although  perhaps  it  may  be  in  some  measure 
elucidated  thereby,  nor  upon  the  law  of  any  other  country  what- 
ever; but  upon  the  Constitution  established  by  the  people  of  the 
United  States;  and  particularly  upon  the  extent  of  powers  given 
to  the  Federal  Judiciary  in  the  2d  section  of  the  3d  article  of  the 
Constitution.  .  .  .  The  judicial  power,  then,  is  expressly  ex- 
tended to  "  controversies  between  a  State  and  citizens  of  another 
State."  When  a  citizen  makes  a  demand  against  a  State,  of  which 
he  is  not  a  citizen,  it  is  as  really  a  controversy  between  a  State  and 
a  citizen  of  another  State,  as  if  such  State  made  a  demand  against 
such  citizen.  The  case,  then,  seems  clearly  to  fall  within  the  letter 
of  the  Constitution.  It  may  be  suggested  that  it  could  not  be 
intended  to  subject  a  State  to  be  a  Defendant,  because  it  would 
affect  the  sovereignty  of  States.  If  that  be  the  case,  what  shall 
we  do  with  the  immediate  preceding  clause;  "  controversies  be- 
tween two  or  more  States,"  where  a  State  must  of  necessity  be 
Defendant  ?  If  it  was  not  the  intent,  in  the  very  next  clause 
also,  that  a  State  might  be  made  Defendant,  why  was  it  so  ex- 
pressed as  naturally  to  lead  to  and  comprehend  that  idea  ?  Why 
was  not  an  exception  made  if  one  was  intended  ?  .  .  . 

1  Art.  Ill,  sect.  2.  —  Rep. 


110  FEDERAL   GOVERNMENT. 

I  am  of  opinion  that  the  Constitution  warrants  a  suit  against  a 
State  by  an  individual  citizen  of  another  State.  .  .  . 

I  think  assumpsit  will  lie,  if  any  suit;  provided  a  State  is  capable 
of  contracting.  .  .  . 

Jay,  C.  J.  .  .  .     It  is  politic,  wise,  and  good,  that,  not  only  the 
controversies  in  which  a  State  is  Plaintiff,  but  also  those  in  which 
a  State  is  Defendant,  should  be  settled;  both  cases,  therefore,  are 
within  the  reason  of  the  remedy;   and  ought  to  be  so  adjudged, 
unless  the  obvious,  plain,  and  literal  sense  of  the  words  forbid  it. 
If  we  attend  to  the  words,  we  find  them  to  be  express,  positive, 
free  from  ambiguity,  and  without  room  for  such  implied  expres- 
sions:  "  The  judicial  power  of  the  United  States  shall  extend  to 
controversies  between  a  state  and  citizens  of  another  state."      If 
the  Constitution  really  meant  to  extend  these  powers  only  to 
those  controversies  in  which  a  State  might  be  Plaintiff,  to  the 
exclusion  of  those  in  which  citizens  had  demands  against  a  State, 
it  is  inconceivable  that  it  should  have  attempted  to  convey  that 
meaning  in  words,  not  only  so  incompetent,  but  also  repugnant 
to  it;  if  it  meant  to  exclude  a  certain  class  of  these  controversies, 
why  were  they  not  expressly  excepted;  on  the  contrary,  not  even 
an  intimation  of  such  intention  appears  in  any  part  of  the  Con- 
stitution.     It  cannot  be  pretended  that  where  citizens  urge  and 
insist  upon  demands  against  a  State,  which  the  State  refuses  to 
admit  and  comply  with,  that  there  is  no  controversy  between 
them.      If  it  is  a  controversy  between  them,  then  it  clearly  falls 
not  only  within  the  spirit,  but  the  very  words  of  the  Constitution. 
What  is  it  to  the  cause  of  justice,  and  how  can  it  affect  the  defini- 
tion of  the  word  controversy,  whether  the  demands  which  cause 
the  dispute  are  made  by  a  State  against  citizens  of  another  State, 
or  by  the  latter  against  the  former  ?  .  .  . 

Ordered  that  unless  the  said  State  shall  .  .  .  appear,  .  .  .  judg- 
ment by  default  shall  be  entered.  ^  .  .  . 

1  See  Hans  v.  Louisiana,  134  U.  S.  1,  11-12,  21  (1890).  —Ed. 


HOLLINGSWORTH   V.    VIRGIXIA.  Ill 

HOLLINGSWORTH  v.   VIRGINIA. 

Supreme  Court  of  the  United  States.     1798. 

[3  Dallas,  378.] 

The  decision  of  the  Court,  in  the  case  of  Chishohn,  Ex'or,  versus 
Georgia  (2  Dall.  Rep.  419)  produced  a  proposition  in  Congress,  for 
amending  the  Constitution  of  the  United  States,  according  to  the 
following  terms: 

"  The  Judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or 
l)y  citizens  or  subjects  of  an}^  foreign  state." 

The  proposition  being  now  adopted  by  the  constitutional  num- 
ber of  States,  Lee,  Attorney  General,  submitted  this  question  to  the 
Court,  —  Whether  the  Amendment  did,  or  did  not,  supersede  all 
suits  depending,  as  well  as  prevent  the  institution  of  new  suits, 
against  any  one  of  the  United  States,  by  citizens  of  another  State  ? 

W.  Tilghman  and  Rawle  argued  in  the  negative. 

Lee,  Attorney  General.  The  case  before  the  court  is  that  of  a 
suit  against  a  state,  in  which  the  Defendant  has  never  entered  an 
appearance:  but  the  amendment  is  equally  operative  in  all  the 
cases  against  states,  where  there  has  been  an  appearance,  or  even 
where  there  have  been  a  trial  and  judgment.  An  amendment  of 
the  Constitution,  and  the  repeal  of  a  law,  are  not,  manifestly,  on 
the  same  footing:  Nor  can  an  explanatory  law  be  expounded  by 
foreign  matter.  The  amendment ,  in  the  present  instance,  is  merely 
explanatory,  in  substance,  as  well  as  language.  From  the  mo- 
ment those  who  gave  the  power  to  sue  a  state  revoked  and  an- 
nulled it,  the  power  ceased  to  be  a  part  of  the  Constitution;  and 
if  it  does  not  exist  there,  it  cannot  in  any  degree  be  found,  or  exer- 
cised, elsewhere.  .  .  . 

The  Court,  on  the  day  succeeding  the  argument,  delivered  an 
unanimous  opinion,  that  the  amendment  being  constitutionally 
adopted,  there  could  not  be  exercised  any  jurisdiction,  in  any  case, 
past  or  future,  in  which  a  state  was  sued  by  the  citizens  of  another 
state,  or  by  citizens,  or  subjects,  of  any  foreign  state. 


112  FEDERAL    GOVERNMENT. 


MARTIN,  Heir  at  Law  and  Devisee  of  Fairfax,  r.  HUNTER'S 

Lessee. 

Supreme  Court  of  the  United  States.     1816. 
[1  Wheaton,  304.]  i 

Error  to  the  Court  of  Appeals  of  Virginia. 

The  original  action  was  ejectment,  involving  construction  of 
treaties  between  Great  Britain  and  the  United  States,  in  1783 
and  1794;  and  the  judgment  of  the  Court  of  Appeals  was  adverse 
to  the  rights  claimed  under  the  treaties.  The  Federal  Judiciarv' 
Act  of  1789,  sect.  25,  enacted,  among  other  things,  that,  if  there  is 
a  final  judgment  or  decree  in  any  suit  in  the  highest  available 
court  of  law  or  equity  of  a  State,  either  in  a  cause  where  is  dra^^^l 
in  question  the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under,  the  United  States,  and  the  decision  is  against 
validity,  or  in  a  cause  where  is  drawn  in  question  the  validity  of  a 
statute  of,  or  an  authority  exercised  under,  any  State,  on  the  ground 
of  repugnancy  to  the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  validity,  then,  in  either  such 
case,  such  final  judgment  or  decree  may  be  re-examined  and  re- 
versed or  affirmed  in  the  Supreme  Court  of  the  United  States, 
upon  a  writ  of  error,  and  the  Supreme  Court  may  remand  the 
cause  for  a  final  decision  or,  the  cause  having  already  been  once 
remanded,  may  proceed  to  a  final  decision  and  awarc^,  execution. 
Under  such  a  A\Tit  of  error  from  the  Supreme  Court  of  the  United 
States,  a  mandate  was  issued,  as  reported  in  Fairfax's  Devisee  v. 
Hunter's  Lessee,  7  Cranch,  603  (1813),  requiring  the  judgment 
of  the  Court  of  Appeals  of  Virginia  to  be  reversed.  The  judgment 
rendered  by  the  Court  of  Appeals  on  the  mandate  was:  "The 
court  is  unanimously  of  opinion,  that  the  appellate  power  of  the 
Supreme  Court  of  the  United  States  does  not  extend  to  this  court, 
under  a  sound  construction  of  the  Constitution  of  the  United 
States;  that  so  much  of  the  25th  section  of  the  Act  of  Congress 
to  establish  the  Judicial  Courts  of  the  United  States  as  extends 
the  appellate  jurisdiction  of  the  Supreme  Court  to  this  court  is  not 
in  pursuance  of  the  Constitution  of  the  United  States;  that  the  writ 
of  error,  in  this  cause,  was  improvidently  allowed,  under  the 
authority  of  that  Act;  that  the  proceedings  thereon  in  the  Su- 
preme Court  were  coram  non  judice,  in  relation  to  this  court,  and 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MARTIX   r.    hunter's   LESSEE.  113 

that  obedience  to  its  mandate  be  declined  by  this  court."     There- 
upon came  the  present  WTit  of  error. 
Jones,  for  the  plaintiffs  in  error. 
Tucker  and  Dexter,  contra. 

Story,  J.,  delivered  the  opmion  of  the  court.  .  .  . 
^  The  Constitution  of  the  United  States  was  ordained  and  estab- 
lished, not  by  the  states  in  their  sovereign  capacities,  but  emphat- 
ically, as  the  preamble  of  the  Constitution  declares,  by  "  the  people 
of  the  United  States."  There  can  be  no  doubt  that  it  was  com- 
petent to  the  people  to  invest  the  general  government  with  all  the 
powers  which  they  might  deem  proper  and  necessary;  to  extend 
or  restrain  these  powers  according  to  their  own  good  pleasure,  and 
to  give  them  a  paramount  and  supreme  authority.  As  little  doubt 
can  there  be,  that  the  people  had  a  right  to  prohibit  to  the  states 
the  exercise  of  any  powers  which  were,  in  their  judgment,  incom- 
patible with  the  objects  of  the  general  compact;  to  make  the 
powers  of  the  state  governments,  in  given  cases,  subordinate  to 
tho.se  of  the  nation,  or  to  reserve  to  themselves  those  sovereign 
authorities  which  they  might  not  choose  to  delegate  to  either.  .  .  . 
^^'lth  these  principles  in  view,  principles  in  respect  to  which  no 
difference  of  opinion  ought  to  be  indulged,  let  us  now  proceed  to 
the  interpretation  of  the  Constitution,  so  far  as  regards  the  great 
points  in  controversy. 

The  third  article  of  the  Constitution  is  that  which  must  princi- 
pally attract  our  attention.  .  .  . 

The  object  of  the  Constitution  was  to  establish  three  great  de- 
partments of  government;  the  legislative,  the  executive,  and  the 
judicial  departments.  The  first  was  to  pass  laws,  the  second  to 
approve  and  execute  them,  and  the  third  to  expound  and  enforce 
them.  Without  the  latter,  it  would  be  impossible  to  carry^  into 
effect  some  of  the  express  provisions  of  the  Constitution.  .  ]  . 

The  judicial  power  shall  extend  to  all  the  cases  enumerated  in 
the  Constitution.  As  the  mode  is  not  limited,  it  may  extend  to  all 
such  cases,  in  any  form,  in  which  judicial  power  may  be  exercised. 
It  may,  therefore  extend  to  them  in  the  shape  of  the  original  or 
appellate  jurisdiction,  or  both;  for  there  is  nothing  in  the  nature 
of  the  cases  which  binds  to  the  exercise  of  the  one  in  preference  to 
the  other.  .  .  . 

This  leads  us  to  the  consideration  of  the  great  question  as  to  the 
nature  and  extent  of  the  appellate  jurisdiction  of  the  United 
States.  .  .  .  Appellate  jurisdiction  is  given  by  the  Constitution 
to  the  supreme  court  in  all  cases  where  it  has  not  original  juris- 


114  FEDERAL   GOVERNMENT. 

diction;  subject,  however,  to  such  exceptions  and  regulations  as 
congress  may  prescribe.  It  is,  therefore,  capable  of  embracing 
every  case  enumerated  in  the  Constitution,  which  is  not  exclusively 
to  be  decided  by  way  of  original  jurisdiction.  But  the  exercise  of 
appellate  jurisdiction  is  far  from  being  limited  by  the  terms  of  the 
Constitution  to  the  supreme  court.  There  can  be  no  doubt  that 
congress  may  create  a  succession  of  inferior  tribunals,  in  each  of 
which  it  may  vest  appellate  as  well  as  original  jurisdiction.  .  .  . 

As,  then,  by  the  terms  of  the  Constitution,  the  appellate  juris- 
diction is  not  limited  as  to  the  supreme  court,  and  as  to  this  court 
it  may  be  exercised  in  all  other  cases  than  those  of  which  it  has 
original  cognizance,  what  is  there  to  restrain  its  exercise  over  state 
tribunals  in  the  enumerated  cases  ?  The  appellate  power  is  not 
limited  by  the  terms  of  the  third  article  to  any  particular  courts. 
The  words  are,  "  the  judicial  power  (which  includes  appellate 
power)  shall  extend  to  all  cases,"  &c.,  and  "  in  all  other  cases 
before  mentioned  the  supreme  court  shall  have  appellate  juris- 
diction." It  is  the  case,  then,  and  not  the  court,  that  gives  the 
jurisdiction.  .  .  . 

It  is  plain  that  the  framers  of  the  Constitution  did  contemplate 
that  cases  within  the  judicial  cognizance  of  the  United  States  not 
only  might  but  would  arise  in  the  state  courts,  in  the  exercise  of 
their  ordinary  jurisdiction.  With  this  view  the  sixth  article  de- 
clares, that  "  this  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  state 
shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding."  It  is  obvious  that 
this  obligation  is  imperative  upon  the  state  judges  in  their  official, 
and  not  merely  in  their  private  capacities.  From  the  very  nature 
of  their  judicial  duties  they  would  be  called  upon  to  pronounce  the 
law  applicable  to  the  case  in  judgment.  They  were  not  to  decide 
merely  according  to  the  laws  or  constitution  of  the  state,  but 
according  to  the  Constitution,  laws  and  treaties  of  the  United 
States  —  "  the  supreme  law  of  the  land."  .  .  . 

It  must,  therefore,  be  conceded  that  the  Constitution  not  only 
contemplated,  but  meant  to  provide  for  cases  ■within  the  scope  of 
the  judicial  power  of  the  United  States,  which  might  yet  depend 
before  state  tribunals.  It  was  foreseen  that  in  the  exercise  of 
their  ordinary  jurisdiction,  state  courts  would  incidentally  take 
cognizance  of  cases  arising  under  the  Constitution,  the  laws,  and 


MARTIN   V.    hunter's    LESSEE.  '  115 

treaties  of  the  United  States.  Yet  to  all  these  cases  the  judicial 
power,  by  the  very  terms  of  the  Constitution,  is  to  extend.  It 
cannot  extend  by  original  jurisdiction  if  that  was  already  right- 
fully and  exclusively  attached  in  the  state  courts,  which  (as  has 
been  already  shown)  may  occur;  it  must,  therefore,  extend  by 
appellate  jurisdiction,  or  not  at  all.  It  would  seem  to  follow  that 
the  appellate  power  of  the  United  States  must,  in  such  cases,  ex- 
tend to  state  tribunals;  and  if  in  such  cases,  there  is  no  reason 
why  it  should  not  equally  attach  upon  all  others  within  the  pur- 
view of  the  Constitution. 

It  has  been  argued  that  such  an  appellate  jurisdiction  over  state 
courts  is  inconsistent  with  the  genius  of  our  governments,  and  the 
spirit  of  the  Constitution.  That  the  latter  was  never  designed  to 
act  upon  state  sovereignties,  but  only  upon  the  people,  and  that 
if  the  power  exists,  it  will  materially  impair  the  sovereignty  of  the 
states,  and  the  independence  of  their  courts.  We  cannot  yield 
to  the  force  of  this  reasoning;  it  assumes  principles  which  we  can- 
not admit,  and  draws  conclusions  to  which  we  do  not  yield  our 
assent. 

It  is  a  mistake  that  the  Constitution  was  not  designed  to  operate 
upon  states,  in  their  corporate  capacities.  It  is  crowded  with 
provisions  which  restrain  or  annul  the  sovereignty  of  the  states 
in  some  of  the  highest  branches  of  their  prerogatives.  The  tenth 
section  of  the  first  article  contains  a  long  list  of  disabihties  and 
prohibitions  imposed  upon  the  states.  Surely,  when  such  essen- 
tial portions  of  state  sovereignty  are  taken  away,  or  prohibited 
to  be  exercised,  it  cannot  be  correctly  asserted  that  the  Constitu- 
tion does  not  act  upon  the  states.  The  language  of  the  Constitu- 
tion is  also  imperative  upon  the  states  as  to  the  performance  of 
many  duties.  It  is  imperative  upon  the  state  legislatures  to  make 
laws  prescribing  the  time,  places,  and  manner  of  holding  elections 
for  senators  and  representatives,  and  for  electors  of  president  and 
vice-president.  And  in  these,  as  well  as  some  other  cases,  con- 
gress have  a  right  to  revise,  amend,  or  supersede  the  laws  which 
may  be  passed  by  state  legislatures.  When,  therefore,  the  states 
are  stripped  of  some  of  the  highest  attributes  of  sovereignty,  and 
the  same  are  given  to  the  United  States;  when  the  legislatures  of 
the  states,  are,  in  some  respects,  under  the  control  of  congress,  and 
in  every  case  are,  under  the  Constitution,  bound  by  the  paramount 
authority  of  the  United  States;  it  is  certainly  difficult  to  support 
the  argument  that  the  appellate  power  o^-er  the  decisions  of  state 
courts  is  contrary  to  the  genius  of  our  institutions.     The  courts 


110  FEDERAL    GOVERNMENT. 

of  the  United  States  can,  without  question,  revise  the  proceedings 
of  the  executive  and  legislative  authorities  of  the  states,  and  if 
they  are  found  to  be  contrary  to  the  Constitution,  may  declare 
them  to  be  of  no  legal  validity.  Surely  the  exercise  of  the  same 
right  over  judicial  tribunals  is  not  a  higher  or  more  dangerous  act 
of  sovereign  power.  .  .  . 

It  has  been  further  argued  against  the  existence  of  this  appellate 
power,  that  it  would  form  a  novelty  in  our  judicial  institutions. 
This  is  certainly  a  mistake.  In  the  Articles  of  Confederation,  an 
instrument  framed  with  infinitely  more  deference  to  state  rights 
and  state  jealousies,  a  power  was  given  to  congress  to  establish 
"  courts  for  revising  and  determining,  finally,  appeals  in  all 
cases  of  captures."  It  is  remarkable,  that  no  power  was  given 
to  entertain  original  jurisdiction  in  such  cases;  and,  conse- 
quently, the  appellate  power  (although  not  so  expressed  in  terms) 
was  altogether  to  be  exercised  in  revising  the  decisions  of  state 
tribunals.  .  .  . 

It  is  further  argued,  that  no  great  public  mischief  can  result 
from  a  construction  which  shall  Umit  the  appellate  power  of  the 
United  States  to  cases  in  their  own  courts:  first,  because  state 
judges  are  bound  by  an  oath  to  support  the  Constitution  of  the 
United  States,  and  must  be  presumed  to  be  men  of  learning  and 
integrity;  and,  secondly,  because  congress  must  have  an  unques- 
tionable right  to  remove  all  cases  within  the  scope  of  the  judicial 
power  from  the  state  courts  to  the  courts  of  the  United  States,  at 
any  time  before  final  judgment,  though  not  after  final  judgment. 
As  to  the  first  reason  —  admitting  that  the  judges  of  the  state 
courts  are,  and  always  will  be,  of  as  much  learning,  integrity,  and 
wisdom,  as  those  of  the  courts  of  the  United  States  (which  we  very 
cheerfully  admit),  it  does  not  aid  the  argiunent.  It  is  manifest 
that  the  Constitution  has  proceeded  upon  a  theory  of  its  own,  and 
given  or  wdthheld  powers  according  to  the  judgment  of  the  Amer- 
ican people,  by  whom  it  was  adopted.  We  can  only  construe  its 
powers,  and  cannot  inquire  into  the  policy  or  principles  which 
induced  the  grant  of  them.  The  Constitution  haS'  presumed 
(whether  rightly  or  wrongly  we  do  not  inquire)  that  state  attach- 
ments, state  prejudices,  state  jealousies,  and  state  interests  might 
sometimes  obstruct,  or  control,  or  be  supposed  to  obstruct  or  con- 
trol, the  regular  administration  of  justice.  Hence,  in  controver- 
sies between  states;  between  citizens  of  different  states;  between 
citizens  claiming  grants  under  different  states;  between  a  state 
and  its  citizens,  or  foreigners,  and  between  citizens  and  foreigners. 


MARTIN    V.    HUNTER'S   LESSEE.  117 

it  enables  the  parties,  under  the  authority  of  congress,  to  have  the 
controversies  heard,  tried,  and  determined  before  the  national 
tribunals.  No  other  reason  than  that  which  has  been  stated  can 
be  assigned,  wh}^  some,  at  least,  of  those  cases  should  not  have  been 
left  to  the  cognizance  of  the  state  courts.  In  respect  to  the  other 
enumerated  cases  —  the  cases  arising  under  the  Constitution,  laws, 
and  treaties  of  the  United  States,  cases  affecting  ambassadors  and 
other  public  ministers,  and  cases  of  admiralty  and  maritime  juris- 
diction —  reasons  of  a  higher  and  more  extensive  nature,  touching 
the  safety,  peace,  and  sovereignty  of  the  nation,  might  well  jus- 
tify a  grant  of  exclusive  jurisdiction. 

This  is  not  all.  A  motive  of  another  kind,  perfectly  compatible 
with  the  most  sincere  respect  for  state  tribunals,  might  induce  the 
grant  of  appellate  power  over  their  decisions.  That  motive  is  the 
importance,  and  even  necessity  of  uniformity  of  decisions  through- 
out the  whole  United  States,  upon  all  subjects  within  the  purview 
of  the  Constitution.  Judges  of  equal  learning  and  integrity,  in 
different  states,  might  differently  interpret  a  statute,  or  a  treaty 
of  the  I'nited  States,  or  even  the  Constitution  itself:  If  there  were 
no  revising  authority  to  control  these  jarring  and  discordant  judg- 
ments, and  harmonize  them  into  uniformity,  the  laws,  the  treaties, 
and  the  Constitution  of  the  United  States  would  be  different  in 
different  states,  and  might,  perhaps,  never  have  precisely  the  same 
construction,  obligation,  or  efficacy,  in  any  two  states.  .  .  . 

There  is  an  additional  consideration,  which  is  entitled  to  great 
weight.  The  Constitution  of  the  United  States  was  designed  for 
the  common  and  equal  benefit  of  all  the  people  of  the  United 
States.  The  judicial  power  was  granted  for  the  same  benign  and 
salutary  purposes.  It  was  not  to  be  exercised  exclusively  for  the 
benefit  of  parties  who  might  be  plaintiffs,  and  would  elect  the 
national  forum,  but  also  for  the  protection  of  defendants  who 
might  be  entitled  to  try  their  rights,  or  assert  their  privileges,  be- 
fore the  same  forum.  Yet,  if  the  construction  contended  for  be 
correct,  it  will  follow,  that  as  the  plaintiff  may  always  elect  the 
state  court,  the  defendant  may  be  deprived  of  all  the  security 
which  the  Constitution  intended  in  aid  of  his  rights.  Such  a  state 
of  things  can,  in  no  respect,  be  considered  as  giving  equal  rights. 
To  obviate  this  difficulty,  we  are  referred  to  the  power  which  it  is 
admitted  congress  possess  to  remove  suits  from  state  courts  to  the 
national  courts;  and  this  forms  the  second  ground  upon  which 
the  argument  we  are  considering  has  been  attempted  to  be  sus- 
tained. 


118  FEDERAL    GOVERNMENT. 

This  power  of  removal  is  not  to  be  found  in  express  terms  in  any 
part  of  the  Constitution;  if  it  be  given,  it  is  only  given  by  implica- 
tion, as  a  power  necessary  and  proper  to  carry  into  elToct  some 
express  power.  .  .  .  It  presupposes  an  exercise  of  original  jurisdic- 
tion to  have  attached  elsewhere.  The  existence  of  this  power  of 
removal  is  familiar  in  courts  acting  according  to  the  course  of  the 
common  law  in  criminal  as  well  as  civil  cases,  and  it  is  exercised 
before  as  well  as  after  judgment.  But  this  is  always  deemed  in 
both  cases  an  exercise  of  appellate,  and  not  of  original  jurisdiction. 
If,  then,  the  right  of  removal  be  included  in  the  appellate  jurisdic- 
tion, it  is  only  because  it  is  one  mode  of  exercising  that  power,  and 
as  congress  is  not  limited  by  the  Constitution  to  any  particular 
mode,  or  time  of  exercising  it,  it  may  authorize  a  removal  either 
before  or  after  judgment.  The  time,  the  process,  and  the  manner 
must  be  subject  to  its  absolute  legislative  control.  A  writ  of  error 
is,  indeed,  but  a  process  which  removes  the  record  of  one  court  to 
the  possession  of  another  court,  and  enables  the  latter  to  inspect  the 
proceedings,  and  give  such  judgment  as  its  own  opinion  of  the  law 
and  justice  of  the  case  may  warrant.  There  is  nothing  in  the 
nature  of  the  process  which  forbids  it  from  being  applied  })y  the  legis- 
lature to  interlocutory  as  well  as  final  judgments.  And  if  the  right 
of  removal  from  state  courts  exist  before  jutlgment,  because  it  is 
included  in  the  appellate  power,  it  must,  for  the  same  reason,  exist 
after  judgment.  .  .  . 

It  is  the  opinion  of  the  whole  court,  that  the  judgment  of  the 
court  of  appeals  of  Virginia,  rendered  on  the  mandate  in  this  cause, 
be  reversed,  and  the  judgment  of  the  district  court,  held  at  Win- 
chester, be,  and  the  same  is  hereby  affirmed. 

Johnson,  J.  It  wall  be  observed  in  this  case,  that  the  court 
disavows  all  intention  to  decide  on  the  right  to  issue  compulsory 
process  to  the  state  courts;  thus  leaving  us,  in  my  opinion,  where 
the  Constitution  and  laws  place  us  —supreme  over  persons  and 
cases  as  far  as  our  judicial  powers  extend,  but  not  asserting  any 
compulsory  control  over  the  state  tribunals. 

In  this  view  I  acquiesce  in  their  opinion,  but  not  altogether  in 
the  reasoning,  or  opinion,  of  my  brother  who  delivered  it.  .  .  . 


Mcculloch  v.  Maryland.  119 

Mcculloch  v.  Maryland  et  ai. 

Supreme  Court  of  the  United  States.     1819. 
[4  Whealon,  316.]  ^ 

Error  to  the  Court  of  Appeals  of  the  State  of  Maryland. 

In  1816  Congress  passed  an  act  incorporating  the  Bank  of  the 
United  States.  In  1817  the  bank  established  a  branch  in  ]\Iary- 
land.  In  1818  Maryland  passed  "  An  Act  to  impose  a  Tax  on  all 
Banks  or  Branches  thereof  in  the  State  of  Maryland,  not  chartered 
by  tlie  Legislature,"  providing  "  that  if  any  bank  has  estal)lished, 
or  shall,  without  authority  from  the  State,  .  .  .  establish  any 
branch,  office  of  discount  and  deposit,  or  office  of  pay  and  receipt, 
...  it  shall  not  be  lawful  for  the  said  branch  ...  to  issue  notes 
...  of  any  other  denomination  than  five,  ten,  twenty,  fifty,  one 
hundred,  five  hundred,  and  one  thousand  dollars,  and  no  note 
shall  be  issued  except  upon  stamped  paper,"  the  stamps  ranging 
from  ten  cents  for  a  five  dollar  note  to  twenty  dollars  for  a  one 
thousand  dollar  note,  and  being  furnished  by  the  Treasurer  of 
the  Western  Shore  and  to  be  paid  for  upon  delivery.  The  act 
provided  "  that  any  institution  .  .  .  may  relieve  itself  from 
.  .  .  the  provisions  ...  by  paying  annually  .  .  .  fifteen  thou- 
sand dollars."  The  act  provided  also  that  any  officer  of  an  in- 
stitution offending  against  the  provisions  "  shall  forfeit  .  .  .  five 
hundred  dollars  for  each  and  every  offence;  ...  to  be  recovered 
by  indictment,  or  action  of  debt,  .  ,  .  one-half  to  the  informer, 
and  the  other  half  to  the  use  of  the  State."  McCulloch,  as  cashier 
of  the  branch,  issued  certain  bank-notes  in  defiance  of  the  act. 
Thereupon  James,  suing  for  himself  and  for  the  State,  brought  an 
action  of  debt  in  the  county  court  of  Baltimore  County,  to  recover 
the  penalties.  Under  an  agreed  statement  of  facts,  that  court 
rendered  judgment  against  McCulloch;  and  the  judgment  was 
affirmed  in  the  highest  court  of  the  State. 

Webster  and  Pinkney,  for  the  plaintiff  in  error. 

Hopkinson,  Jones,  and  Martin,  contra. 

Wirt,  Attorney  General,  was  also  heard  by  reason  of  the  inter- 
est of  the  United  States. 

M.^rshall,  C.J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  first  question  made  in  the  cause  is,  has  Congress  power  to 
incorporate  a  bank  ? 

^  An  abbreviated  statement  has  been  presented.  —  Ed. 


120  FEDERAL   GOVERNMENT. 

It  has  been  truly  said,  that  this  can  scarcely  be  considered  as  an 
open  question,  entirely  unprejudiced  V)y  the  former  proceedings 
of  the  nation  respecting  it.  The  principle  now  contested  was 
introduced  at  a  very  early  period  of  our  history,  has  been  recog- 
nised by  many  successive  legislatures,  and  has  been  acted  upon 
by  the  judicial  department,  in  cases  of  peculiar  delicacy,  as  a  law 
of  undoubted  obligation.  .  .  . 

These  observations  belong  to  the  cause;  but  they  are  not  made 
under  the  impression  that,  were  the  question  entirely  new,  the  law 
would  be  found  irreconcilable  with  the  constitution. 

In  discussing  this  question,  the  counsel  for  the  State  of  Mary- 
land have  deemed  it  of  some  importance,  in  the  construction  of  the 
constitution,  to  consider  that  instrument  not  as  emanating  from 
the  people,  but  as  the  act  of  sovereign  and  independent  States. 
The  powers  of  the  general  government,  it  has  been  said,  are  dele- 
gated by  the  States,  who  alone  are  truly  sovereign;  and  must  be 
exercised  in  subordination  to  the  States,  who  alone  possess  su- 
preme dominion. 

It  would  be  difficult  to  sustain  this  proposition.  The  Conven- 
tion which  framed  the  constitution  was  indeed  elected  by  the  State 
legislatures.  But  the  instrument,  when  it  came  from  their  hands, 
was  a  mere  proposal,  without  obligation,  or  pretensions  to  it.  It 
was  reported  to  the  then  existing  Congress  of  the  United  States, 
with  a  request  that  it  might  "  be  sulmiitted  to  a  Convention  of 
Delegates,  chosen  in  each  State  by  the  people  thereof,  under  the 
recommendation  of  its  Legislature,  for  their  assent  and  ratifi- 
cation." This  mode  of  proceeding  was  adopted;  and  by  the 
Convention,  by  Congress,  and  by  the  State  Legislatures,  the  instru- 
ment was  submitted  to  the  people.  They  acted  upon  it  in  the 
only  manner  in  which  they  can  act  safely,  effectively,  and  wisely, 
on  such  a  subject,  by  assembling  in  Convention.  It  is  true,  they 
assembled  in  their  several  States  —  and  where  else  should  they 
have  assembled  ?  No  political  dreamer  was  ever  wdld  enough  to 
think  of  breaking  down  the  lines  which  separate  the  States,  and 
of  compounding  the  American  people  into  one  common  mass. 
Of  consequence,  when  they  act,  they  act  in  their  States.  But  the 
measures  they  adopt  do  not,  on  that  account,  cease  to  be  the 
measures  of  the  people  themselves,  or 'become  the  measures  of 
the  State  governments. 

From  these  Conventions  the  constitution  derives  its  whole 
authority.  The  government  proceeds  directly  from  the  people; 
is  "  ordained  and  established  "  in  the  name  of  the  people;  and  is 


McCULLOCH  V.    AL\RYLAND.  121 

declared  to  be  ordained,  "  in  order  to  form  a  more  perfect  union, 
establish  justice,  ensure  domestic  tranquillity,  and  secure  the 
blessings  of  liberty  to  themselves  and  to  their  posterity."  The 
assent  of  the  States,  in  their  sovereign  capacity,  is  imphed  in  call- 
ing a  Convention,  and  thus  submitting  that  instrument  to  the 
people.  But  the  people  were  at  perfect  liberty  to  accept  or  reject 
It ;  and  their  act  was  final.  It  required  not  the  affirmance,  and 
could  not  be  negatived,  by  the  State  governments.  The  consti- 
tution, when  thus  adopted,  was  of  complete  obligation,  and  bound 
the  State  sovereignties. 

It  has  been  said,  that  the  people  had  already  surrendered  all 
their  powers  to  the  State  sovereignties,  and  had  nothing  more  to 
give.  But,  surely,  the  question  whether  they  may  resume  and 
modify  the  powers  granted  to  government  does  not  remain  to  be 
settled  in  this  country.  ]Much  more  might  the  legitimacy  of  the 
general  government  be  doubted,  had  it  been  created  by  the  States. 
The  powers  delegated  to  the  State  sovereignties  were  to  be  exer- 
cised by  themselves,  not  by  a  di.^tinct  and  independent  sovereignty, 
created  by  them.selves.  To  the  formation  of  a  league,  such  as 
was  the  confederation,  the  State  sovereignties  were  certainly  com- 
petent. But  when,  "  in  order  to  form  a  more  perfect  union,"  it 
was  deemed  necessary  to  change  this  alliance  into  an  effective 
government,  possessing  great  and  sovereign  powers,  and  acting 
directly  on  the  people,  the  necessity  of  referring  it  to  the  people, 
and  of  deriving  its  powers  directly  from  them,  was  felt  and  acknowl- 
edged by  all. 

The  government  of  the  Union,  then  (whatever  may  be  the  in- 
fluence of  this  fact  on  the  case),  is,  emphatically,  and  truly,  a 
government  of  the  people.  In  form  anil  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  ex- 
ercised directly  on  them,  and  for  their  benefit. 

This  government  is  acknowledged  by  all  to  be  one  of  enumer- 
ated powers.  .  .  . 

If  any  one  proposition  could  command  the  universal  assent  of 
mankind,  we  might  expect  it  would  be  this  —  that  the  government 
of  ihe  Union,  though  limited  in  its  powers,  is  supreme  within  its 
sphere  of  action.  This  would  seem  to  result  necessarily  from  its 
nature.  It  is  the  government  of  all;  its  powers  are  delegated  by 
all ;  it  represents  all,  and  acts  for  all.  Though  any  one  State  may 
be  willing  to  control  its  operations,  no  State  is  willing  to  allow 
others  to  control  them.  The  nation,  on  those  subjects  on  which 
It  can  act,  must  necessarily  bind  its  component  parts.    But  this 


122  FEDERAL   GOVERNMENT. 

question  is  not  left  to  mere  reason:  the  people  have,  in  express 
terms,  decided  it,  by  saying,  "  this  constitution,  and  the  laws  of 
the  United  States,  which  shall  be  made  in  pursuance  thereof," 
"  shall  be  the  supreme  law  of  the  land,"  and  by  requiring  that  the 
members  of  the  State  legislatures,  and  the  officers  of  the  executive 
and  judicial  departments  of  the  States,  shall  take  the  oath  of 
fidelity  to  it. 

The  government  of  the  United  States,  then,  though  limited  in 
its  powers,  is  supreme;  and  its  laws,  when  made  in  pursuance  of 
the  constitution,  form  the  supreme  law  of  the  land,  "  any  thing 
in  the  constitution  or  laws  of  any  State  to  the  contrarv  notwith- 
standing." 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no  phrase 
in  the  instrument  which,  like  the  articles  of  confederation,  ex- 
cludes incidental  or  implied  powers;  and  which  requires  that 
everything  granted  shall  be  expressly  and  minutely  described. 
Even  the  10th  amendment,  which  was  framed  for  the  purpose  of 
quieting  the  excessive  jealousies  which  had  been  excited,  omits 
the  word  "  expressly,"  and  declares  only  that  the  powers  "  not 
delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  or  to  the  people;  "  thus  leaving  the  question, 
whether  the  particular  power  which  may  become  the  subject  of 
contest  has  been  delegated  to  the  one  government,  or  prohibited 
to  the  other,  to  depend  on  a  fair  construction  of  the  whole  instru- 
ment. The  men  who  drew  and  adopted  this  amendment  had 
experienced  the  embarrassments  resulting  from  the  insertion  of 
this  word  in  the  articles  of  confederation,  and  probably  omitted 
it  to  avoid  those  emljarrassments.  A  constitution,  to  contain  an 
accurate  detail  of  all  the  subdivisions  of  which  its  great  powers 
will  admit,  and  of  all  the  means  by  which  they  may  be  carried  into 
execution,  would  partake  of  the  prolixity  of  a  legal  code,  and  could 
scarcely  be  embraced  by  the  human  mind.  It  would  probably 
never  be  understood  by  the  public.  Its  nature,  therefore,  requires, 
that  only  its  great  outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  compose  those  Ob- 
jects be  deduced  from  the  nature  of  the  objects  themselves.  That 
this  idea  was  entertained  by  the  framers  of  the  American  constitu- 
tion, is  not  only  to  be  inferred  from  the  nature  of  the  instrument, 
but  from  the  language.  Why  else  were  some  of  the  limitations, 
found  in  the  ninth  section  of  the  1st  article,  introduced  ?  It  is 
also,  in  some  degree,  warranted  by  their  having  omitted  to  use 


McCULLOCH    V.    MAR'i'LAND.  123 

any  restrictive  term  which  might  prevent  its  receiving  a  fair  and 
just  interpretation.  In  considering  this  question,  then,  we  must 
never  forget,  that  it  is  a  constitution  we  are  expounding. 

Although,  among  the  enumerated  powers  of  goverimient,  we  do 
not  find  the  word  "  bank  "  or  "  incorporation,"  we  find  the  great 
powers  to  lay  and  collect  taxes;  to  borrow  money;  to  regulate 
commerce;  to  declare  and  conduct  a  war;  and  to  raise  and  sup- 
port armies  and  navies.  The  sword  and  the  purse,  all  the  external 
relations,  and  no  inconsiderable  portion  of  the  industry  of  the 
nation,  are  entrusted  to  its  government.  It  can  never  be  pre- 
tended that  these  vast  powers  draw  after  them  others  of  inferior 
importance,  merely  because  they  are  inferior.  Such  an  idea  can 
never  be  advanced.  But  it  may  with  great  reason  be  contended, 
that  a  government,  entrusted  with  such  ample  powers,  on  the  due 
execution  of  which  the  happiness  and  prosperity  of  the  nation  so 
vitally  depends,  must  also  be  entrusted  with  ample  means  for  their 
execution.  The  power  being  given,  it  is  the  interest  of  the  nation 
to  facilitate  its  execution.  It  can  never  be  their  interest,  and 
cannot  be  presumed  to  have  been  their  intention,  to  clog  and  em- 
barrass its  execution  by  withholding  the  most  appropriate  means. 
Throughout  this  vast  republic,  from  the  St.  Croix  to  the  Gulph  of 
Mexico,  from  the  Atlantic  to  the  Pacific,  revenue  is  to  be  collected 
and  expended,  armies  are  to  be  marched  and  supported.  The 
exigencies  of  the  nation  may  require  that  the  treasure  raised  in 
the  north  should  be  transported  to  the  south,  that  raised  in  the 
east  conveyed  to  the  west,  or  that  this  order  should  be  reversed. 
Is  that  construction  of  the  constitution  to  be  preferred  which  would 
render  these  operations  difficult,  hazardous,  and  expensive  ?  Can 
we  adopt  that  construction  (unless  the  words  imperiously  require 
it),  which  would  impute  to  the  framers  of  that  instrument,  when 
granting  these  powers  for  the  puljlic  good,  the  intention  of  im- 
peding their  exercise  by  withholding  a  choice  of  means  ?  If, 
indeed,  such  be  the  mandate  of  the  constitution,  we  have  only  to 
obey;  but  that  instrument  does  not  profess  to  enumerate  the 
means  by  which  the  powers  it  confers  may  be  executed;  nor  does 
it  prohibit  the  creation  of  a  corporation,  if  the  existence  of  such  a 
being  be  essential  to  the  beneficial  exercise  of  those  powers.  It  is, 
then,  the  subject  of  fair  inquiry,  how  far  such  means  may  be*em- 
ployed. 

It  is  not  denied,  that  the  powers  given  to  the  government  imply 
the  ordinary  means  of  execution.  That,  for  example,  of  raising 
revenue,  and  applying  it  to  national  purposes,  is  admitted  to  imply 


124  FEDERAL   GOVERNMENT. 

the  power  of  conveying  money  from  place  to  place,  as  the  exigen- 
cies of  the  nation  may  require,  and  of  employing  the  usual  means 
of  conveyance.  But  it  is  denied  that  the  government  lias  its 
choice  of  means;  or,  that  it  may  employ  the  most  convenient 
means,  if,  to  employ  them,  it  be  necessary  to  erect  a  corporation. 

On  what  foundation  does  this  argument  rest  ?  .  .  . 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sover- 
eignty. This  is  admitted.  But  to  what  portion  of  sovereignty 
does  it  appertain  ?  Does  it  belong  to  one  more  than  to  another  ? 
In  America,  the  powers  of  sovereignty  are  divided  between  the 
government  of  the  Union,  and  those  of  the  States.  They  are 
each  sovereign,  with  respect  to  the  objects  committed  to  it,  and 
neither  sovereign  with  respect  to  the  objects  conamitted  to  the 
other.   .   .   . 

But  the  constitution  of  the  United  States  has  not  left  the  right 
of  Congress  to  employ  the  necessary  means,  for  the  execution  of 
the  powers  conferred  on  the  government,  to  general  reasoning. 
To  its  enumeration  of  powers  is  added  that  of  making  "  all  laws 
which  shall  be  necessary  and  proper,  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this  consti- 
tution, in  the  government  of  the  United  States,  or  in  any  depart- 
ment thereof." 

The  counsel  for  the  State  of  Marjdand  have  urged  various  argu- 
ments, to  prove  that  this  clause,  though  in  terms  a  grant  of  power, 
is  not  so  in  effect;  but  is  really  restrictive  of  the  general  right, 
which  might  otherwise  be  implied,  of  selecting  means  for  executing 
the  enumerated  powers.  .  .  . 

The  argument  on  which  most  reliance  is  placed  is  drawn  from 
the  peculiar  language  of  this  clause.  Congress  is  not  empowered 
by  it  to  make  all  laws,  which  may  have  relation  to  the  powers  con- 
ferred on  the  govermnent,  but  such  only  as  may  be  "  necessary  and 
proper  "  for  carrying  them  into  execution.  The  word  "  necessary,'* 
is  considered  as  controlling  the  whole  sentence,  and  as  limiting  the 
right  to  pass  laws  for  the  execution  of  the  granted  powers,  to  such 
as  are  indispensable,  and  without  which  the  power  would  be  nuga- 
tory. That  it  excludes  the  choice  of  means,  and  leaves  to  Con- 
gress, in  each  case,  that  only  which  is  most  direct  and  simple. 

fs  it  true,  that  this  is  the  sense  in  which  the  word  "  necessary  " 
is  always  used  ?  Does  it  always  import  an  absolute  physical 
necessity,  so  strong,  that  one  thing,  to  which  another  may  be 
termed  necessary,  cannot  exist  without  that  other  ?  We  think 
it  does  not.  .  .  . 


McCULLOCH    V.    MARYLAXD.  125 

It  must  have  been  the  intention  of  those  who  gave  these  powers, 
to  insure,  as  far  as  human  prudence  could  insure,  their  beneficial 
execution.  This  could  not  be  done  by  confiding  the  choice  of 
means  to  such  narrow  limits  as  not  to  leave  it  in  the  power  of  Con- 
gress to  adopt  any  which  might  be  appropriate,  and  which  were 
conducive  to  the  end.  ... 

This  clause,  as  construed  by  the  State  of  Mandand,  would 
abridge,  and  ahnost  annihilate  this  useful  and  necessary  right  of  the 
legislature  to  select  its  means.  That  this  could  not  be  intended, 
IS,  we  should  think,  had  it  not  been  alreadv  controverted,  too 
apparent  for  controversy.  We  think  so  for  the  following  reasons : 
1st.  The  clause  is  placed  among  the  powers  of  Congress,  not 
among  the  limitations  on  those  powers. 

2nd.  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers 
vested  m  the  government.  It  purports  to  be  an  additional  power, 
not  a  restriction  on  those  already  granted. 

We  admit,  as  all  must  achnit,  that  the  powers  of  the  government 
are  limited,  and  that  its  limits  are  not  to  be  transcended.  But  we 
think  the  sound  construction  of  the  constitution  must  allow  to  the 
national  legislature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  execution,  which 
will  enable  that  body  to  perform  the  high  duties  assigned  to  it,  in 
the  manner  most  beneficial  to  the  people.  Let  the  end  be  legiti- 
mate, let  it  be  within  the  scope  of  the  constitution,  and  all  means 
which  are  appropriate,  which  are  plainly  arlapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter  and  spirit  of 
the  constitution,  are  constitutional. 

That  a  corporation  must  be  considered  as  a  means  not  less  usual, 
not  of  higher  dignity,  not  more  requiring  a  particular  specification 
than  other  means,  has  been  sufficiently  proved. 

If  a  corporation  may  be  employed  indiscriminately  with  other 
means  to  carry  into  execution  the  powers  of  the  government,  no 
particular  reason  can  be  assigned  for  excluding  the  use  of  a  bank, 
if  required  for  its  fiscal  operations.  To  use  one,  must  be  within 
the  discretion  of  Congress,  if  it  be  an  appropriate  mode  of  execut- 
mg  the  powers  of  government.  That  it  is  a  convenient,  a  useful, 
and  essential  instrument  in  the  prosecution  of  its  fiscal  operations, 
is  not  now  a  subject  of  controversy.  .  . 

But,  were  its  necessity  less  apparent,  none  can  deny  its  being 
an  appropriate  measure;  and  if  it  is,  the  degree  of  its  necessity, 
as  has  been  very  justly  observed,  is  to  be  discussed  in  another 
place.      Should  Congress,  in  the  execution  of  its  powers,  adopt 


126  FEDERAL    GOVERNMENT. 

measures  which  are  prohibited  by  the  constitution;  or  should 
Congress,  under  the  pretext  of  executing  its  powers,  pass  laws  for 
the  accomplishment  of  objects  not  entrusted  to  the  government; 
it  would  become  the  painful  duty  of  this  tribunal,  should  a  case 
requiring  such  a  decision  come  before  it,  to  say  that  such  an  act 
was  not  the  law  of  the  land.  But  where  the  law  is  not  prohibited, 
and  is  really  calculated  to  effect  any  of  the  objects  entrusted  to  the 
government,  to  undertake  here  to  inquire  into  the  degree  of  its 
necessity,  would  be  to  pass  the  line  which  circumscribes  the  judicial 
department,  and  to  tread  on  legislative  ground.  This  court  dis- 
claims all  pretensions  to  such  a  power. 

After  this  declaration,  it  can  scarcely  be  necessary  to  say,  that 
the  existence  of  State  banks  can  have  no  possible  influence  on  the 
question.  No  trace  is  to  be  found  in  the  constitution  of  an  inten- 
tion to  create  a  dependence  of  the  government  of  the  Union  on 
those  of  the  States,  for  the  execution  of  the  great  powers  assigned 
to  it.  Its  means  are  adequate  to  its  ends;  and  on  those  means 
alone  was  it  expected  to  rely  for  the  accomplishment  of  its  ends. 
To  impose  on  it  the  necessity  of  resorting  to  means  which  it  can- 
not control,  which  another  government  may  furnish  or  withhold, 
would  render  its  course  precarious,  the  result  of  its  measures 
uncertain,  and  create  a  dependence  on  other  governments, 
which  might  disappoint  its  most  important  designs,  and  is  incom- 
patible with  the  language  of  the  constitution.  But  were  it  other- 
wise, the  choice  of  means  implies  a  right  to  choose  a  national  bank 
in  preference  to  State  banks,  and  Congress  alone  can  make  the 
election.  .  .  . 

It  being  the  opinion  of  the  Court,  that  the  act  incorporating  the 
bank  is  constitutional;  and  that  the  power  of  establishing  a  Ir.ranch 
in  the  State  of  Maryland  might  be  properly  exercised  by  the  bank 
itself,  we  proceed  to  inquire  — 

2.  Whether  the  State  of  INlaryland  may,  without  violating  the 
constitution,  tax  that  branch  ? 

That  the  power  of  taxation  is  one  of  vital  importance;  that  it 
is  retained  by  the  States;  that  it  is  not  abridged  by  the  grant  of  a 
similar  power  to  the  government  of  the  Union;  that  it  is  to  be 
concurrently  exercised  by  the  two  governments:  are  truths  which 
have  never  been  denied.  But,  such  is  the  paramount  character 
of  the  constitution,  that  its  capacity  to  withdraw  any  subject  from 
the  action  of  even  this  power,  is  admitted.  The  States  are  ex- 
pressly forbidden  to  lay  any  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  their  inspection 


McCULLOCH   V.    MAR-iX-AJSD.  127 

laws.      If  the  obligation  of  this  prohibition  must  be  conceded 

if  it  may  restrain  a  State  from  the  exercise  of  its  taxing  power  on 
imports  and  exports;  the  same  paramount  character  would  seem 
to  restrain,  as  it  certainly  may  restrain,  a  State  from  such  other 
exercise  of  this  power,  as  is  in  its  nature  incompatible  with,  and 
repugnant  to,  the  constitutional  laws  of  the  Union.  A  law,  abso- 
lutely repugnant  to  another,  as  entirely  repeals  that  other  as  if 
express  terms  of  repeal  were  used. 

On  this  ground  the  counsel  for  the  bank  place  its  claim  to  be 
exempted  from  the  power  of  a  State  to  tax  its  operations.  There 
is  no  express  provision  for  the  case,  but  the  claim  has  been  sus- 
tained on  a  principle  which  so  entirely  pervades  the  constitution, 
is  so  intermixed  with  the  materials  which  compose  it,  so  inter- 
woven with  its  web,  so  blended  with  its  texture,  as  to  be  incapable 
of  being  separated  from  it,  without  rending  it  into  shreds. 

This  great  principle  is,  that  the  constitution  and  the  laws  made 
in  pursuance  thereof  are  supreme;  that  they  control  the  consti- 
tution and  laws  of  the  respective  States,  and  cannot  be  controlled 
by  them.  .  .  . 

But  taxation  is  said  to  be  an  absolute  power,  which  acknowl- 
edges no  other  limits  than  those  expressly  prescribed  in  the  con- 
stitution, and  like  sovereign  power  of  every  other  description,  is 
trusted  to  the  discretion  of  those  who  use  it.  But  the  very  terms 
of  this  argument  admit  that  the  sovereignty  of  the  State,  in  the 
article  of  taxation  itself,  is  subordinate  to,  and  may  be  controlled 
by  the  constitution  of  the  United  States.  How  far  it  has  been 
controlled  by  that  instrument  must  be  a  question  of  construction. 
In  making  this  construction,  no  principle  not  declared,  can  be 
admissible,  which  would  defeat  tlie  legitimate  operations  of  a 
supreme  government.  It  is  of  the  very  essence  of  supremacy 
to  remove  all  obstacles  to  its  action  within  its  o\ra  sphere,  and 
so  to  modify  every  power  vested  in  subordinate  governments,  as  to 
exempt  its  own  operations  from  their  own  influence.  This  effect 
need  not  be  stated  in  terms.  It  is  so  involved  in  the  declaration 
of  supremacy,  so  necessarily  implied  in  it,  that  the  expression  of  it 
could  not  make  it  more  certain.  We  must,  therefore,  keep  it  in 
view  while  construing  the  constitution. 

The  argument  on  the  part  of  the  State  of  Marvdand,  is,  not  that 
the  States  may  directly  resist  a  law  of  Congress,  but  that  they  may 
exercise  their  acknowledged  powers  upon  it,  and  that  the  consti- 
tution leaves  them  this  right  in  the  confidence  that  they  w411  not 
abuse  it.  .  .  . 


128  FEDERAL   GOVERNMENT. 

The  sovereignty  of  a  State  extends  to  everything  which  exists 
by  its  own  authority,  or  is  introduced  by  its  permission ;  but  does 
it  extend  to  those  means  which  are  employed  by  Congress  to  carry 
into  execution  powers  conferred  on  that  body  by  the  people  of  the 
United  States  ?  We  think  it  demonstrable  that  it  does  not.  Those 
powers  are  not  given  by  the  people  of  a  single  State.  They  are 
given  by  the  people  of  the  United  States  to  a  government  whose 
laws,  made  in  pursuance  of  the  constitution,  are  declared  to  be 
supreme.  Consequently,  the  people  of  a  single  State  cannot  con- 
fer a  sovereignty  which  will  extend  over  them.  .  .  . 

That  the  power  to  tax  involves  the  power  to  destroy;  that  the 
power  to  destroy  may  defeat  and  render  useless  the  power  to 
create ;  that  there  is  a  plain  repugnance,  in  conferring  on  one  gov- 
ernment a  power  to  control  the  constitutional  measures  of  another, 
which  other,  with  respect  to  those  very  measures,  is  declared  to 
be  supreme  over  that  which  exerts  the  control  are  propositions 
not  to  be  denied.  But  all  inconsistencies  are  to  be  reconciled  by 
the  magic  of  the  word  CONFIDENCE.  Taxation,  it  is  said,  does 
not  necessarily  and  unavoidably  destroy.  To  carry  it  to  the  excess 
of  destruction  would  be  an  abuse,  to  presume  which,  would  banish 
that  confidence  which  is  essential  to  all  government. 

But  is  this  a  case  of  confidence  ?  Would  the  people  of  any  one 
State  trust  those  of  another  with  a  power  to  control  the  most  in- 
significant operations  of  their  State  governments  ?  We  know 
they  would  not.  Why,  then,  should  we  suppose  that  the  people 
of  any  one  State  should  be  willing  to  trust  those  of  another  with  a 
power  to  control  the  operations  of  a  government  to  which  they 
have  confided  their  most  important  and  most  valuable  interests  ? 
In  the  legislature  of  the  Union  alone,  are  all  represented.  The 
legislature  of  the  Union  alone,  therefore,  can  be  trusted  by  the 
people  with  the  power  of  controlling  measures  which  concern  all, 
in  the  confidence  that  it  ^dll  not  be  abused.  .  .  . 

If  the  States  may  tax  one  instrument,  employed  by  the  govern- 
ment in  the  execution  of  its  powers,  they  may  tax  any  and  every 
other  instrument.  They  may  tax  the  mail;  they  may  tax  the 
mint;  they  may  tax  patent  rights ;  they  may  tax  the  papers  of  the 
custom-house;  they  may  tax  judicial  process;  they  may  tax  all 
the  means  employed  by  the  government,  to  an  excess  which  would 
defeat  all  the  ends  of  government.  This  was  not  intended  by  the 
American  people.  They  did  not  design  to  make  their  government 
dependent  on  the  States.  .  .  . 


McCULLOCH    V.    MARYLAND.  129 

This  is  not  all.  If  the  controlling  power  of  the  States  be  estab- 
lished; if  their  supremacy  as  to  taxation  be  acknowledged;  what 
is  to  restrain  their  exercising  this  control  in  any  shape  they  may 
please  to  give  it  ?  Their  sovereignty  is  not  confined  to  taxation. 
That  is  not  the  only  mode  in  which  it  might  be  "displayed.  The 
question  is,  in  truth,  a  question  of  supremacy:  and  if  the  right  of 
the  States  to  tax  the  means  employed  by  the  general  government 
be  conceded,  the  declaration  that  the  constitution,  and  the  laws 
made  in  pursuance  thereof,  shall  be  the  supreme  law  of  the  land, 
is  empty  and  unmeaning  declamation.  .  .  . 

It  has  also  been  insisted,  that,  as  the  power  of  taxation  in  the 
general  and  State  governments  is  acknowledged  to  be  concurrent, 
every  argument  which  would  sustain  the  right  of  the  general  gov- 
ernment to  tax  banks  chartered  by  the  States,  will  equally  sustain 
the  right  of  the  States  to  tax  banks  chartered  by  the  general  gov- 
ernment. 

But  the  two  cases  are  not  on  the  same  reason.  The  people  of  all 
the  States  have  created  the  general  government,  and  have  con- 
ferred upon  it  the  general  power  of  taxation.  The  people  of  all  the 
States,  and  the  States  themselves,  are  represented  in  Congress, 
and,  by  their  representatives,  exercise  this  power.  When  they 
tax  the  chartered  institutions  of  the  States,  they  tax  their  con- 
stituents; and  these  taxes  must  be  uniform.  But,  when  a  State 
taxes  the  operations  of  the  government  of  the  United  States,  it 
acts  upon  institutions  created,  not  by  their  own  constituents,  but 
by  people  over  whom  they  claim  no  control.  It  acts  upon  the 
measures  of  a  government  created  by  others  as  well  as  themselves, 
for  the  benefit  of  others  in  common  with  themselves.  The  differ- 
ence is  that  which  always  exists,  and  always  must  exist,  between 
the  action  of  the  whole  on  a  part,  and  the  action  of  a  part  on  the 
whole  —  between  the  laws  of  a  government  declared  to  be  su- 
preme, and  those  of  a  government  which,  when  in  opposition  to 
those  laws,  is  not  supreme.  ,  .  . 

The  Court  has  bestowed  on  this  subject  its  most  deliberate  con- 
sideration. The  result  is  a  conviction  that  the  States  have  no 
power,  by  taxation  or  otherwise,  to  retard,  impede,  burden,  or  in 
any  manner  control,  the  operations  of  the  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  the  powers  vested 
in  the  general  government.  This  is,  we  think,  the  unavoid- 
able consequence  of  that  supremacy  which  the  constitution  has 
declared. 


130  FEDERAL   GOVERNMENT. 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the  legis- 
lature of  Maryland,  imposing  a  tax  on  the  Bank  of  the  United 
States,  is  unconstitutional  and  void. 

This  opinion  does  not  deprive  the  States  of  any  resources  which 
they  originally  possessed.  It  does  not  extend  to  a  tax  paid  by  the 
real  property  of  the  bank,  in  common  with  the  other  real  property 
within  the  State,  nor  to  a  tax  imposed  on  the  interest  which  the 
citizens  of  Maryland  may  hold  in  this  institution,  in  common  with 
other  property  of  the  same  description  throughout  the  State.  But 
this  is  a  tax  on  the  operations  of  the  bank,  and  is,  consequently, 
a  tax  on  the  operation  of  an  instrument  employed  by  the  govern- 
ment of  the  Union  to  carry  its  powers  into  execution.  Such  a  tax 
must  be  unconstitutional. 

Judgment  reversed. 


COHENS   V.   VIRGINIA. 
Supreme  Court  of  the  United  States.     1821. 

[6  Wheaton,  264.]  i 

Error  to  the  Quarterly  Session  Court  for  the  Borough  of  Nor- 
folk, Virginia. 

Barhour  and  Smyth,  for  the  defendant  in  error. 

D.  B.  Ogden  and  Pinkney,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  Court  of 
Hustings  for  the  borough  of  Norfolk,  on  an  information  for  selling 
lottery  tickets,  contrary  to  an  act  of  the  Legislature  of  Virginia. 
In  the  State  Court,  the  defendant  claimed  the  protection  of  an  act 
of  Congress.  A  case  was  agreed  between  the  parties,  which  states 
the  act  of  Assembly  on  which  the  prosecution  was  founded,  and 
the  act  of  Congress  on  which  the  defendant  rehed,  and  concludes 
in  these  words:  "  If  upon  this  case  the  Court  shall  be  of  opinion 
that  the  acts  of  Congress  before  mentioned  were  valid,  and,  on 
the  true  construction  of  those  acts,  the  lottery  tickets  sold  by  the 
defendants  as  aforesaid,  might  lawfully  be  sold  within  the  State 

^  The  statement  has  been  omitted.  —  Ed. 


COHENS    V.    VIRGINIA.  131 

of  Virginia,  notwithstanding  the  act  or  statute  of  the  general 
assembly  of  Virginia  prohibiting  such  sale,  then  judgment  to  be 
entered  for  the  defendants:  And  if  the  Court  should  be  of  opinion 
that  the  statute  or  act  of  the  General  Assembly  of  the  State  of 
Virginia,  prohibiting  such  sale,  is  valid,  notwithstanding  the  said 
acts  of  Congress,  then  judgment  to  be  entered  that  the  defendants 
are  guilty,  and  that  the  Commonwealth  recover  against  them  one 
hundred  dollars  and  costs." 

Judgment  was  rendered  against  the  defendants;  and  the  Court 
in  which  it  was  rendered  being  the  highest  Court  of  the  State  in 
which  the  cause  was  cognizable,  the  record  has  been  brought  into 
this  Court  by  writ  of  error. ^ 

The  defendant  in  error  moves  to  dismiss  this  mtH,  for  want  of 
jurisdiction.  .  .  . 

The  first  question  to  be  considered  is,  whether  the  jurisdiction 
of  this  Court  is  excluded  by  the  character  of  the  parties,  one  of 
them  being  a  State,  and  the  other  a  citizen  of  that  State  ?  .  .  . 

The  Court  can  perceive  no  reason  founded  on  the  character  of 
the  parties  for  introducing  an  exception  which  the  constitution 
has  not  made;  and  we  think  that  the  judicial  power,  as  originally 
given,  extends  to  all  cases  arising  under  the  constitution  or  a  law 
of  the  United  States,  whoever  may  be  the  parties.  .  .  . 

This  leads  to  a  consideration  of  the  11th  amendment. 

It  is  in  these  words:  "  The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity 
commenced  or  prosecuted  against  one  of  the  United  States,  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign 
State." 

It  is  a  part  of  our  history',  that,  at  the  adoption  of  the  constitu- 
tion, all  the  States  were  greatly  indebted;  and  the  apprehension 
that  these  debts  might  be  prosecuted  in  the  federal  Courts,  formed 
a  very  serious  objection  to  that  instrument.  Suits  were  instituted; 
and  the  Court  maintained  its  jurisdiction.  The  alarm  was  gen- 
eral;, and,  to  quiet  the  apprehensions  that  were  so  extensively 
entertained,  this  amendment  was  proposed  in  Congress,  and 
adopted  by  the  State  legislatures.  That  its  motive  was  not  to 
maintain  the  sovereignty  of  a  State  from  the  degradation  supposed 
to  attend  a  compulsory  appearance  before  the  tribunal  of  the 
nation,  may  be  inferred  from  the  terms  of  the  amendment.      It 

*  The  plaintiff  in  error  prayed  an  appeal  from  the  judgment  of  the  Court 
of  Hustings,  but  it  was  refused,  on  the  ground  that  there  was  no  higher 
State  tribimal  which  could  take  cognizance  of  the  case.  —  Rep. 


132  FEDERAL   GOVERNMENT. 

does  not  comprehend  controversies  between  two  or  more  States, 
or  between  a  State  and  a  foreign  State.  The  jurisdiction  of  the 
Court  still  extends  to  these  cases:  and  in  these  a  State  may  still 
be  sued.  We  must  ascribe  the  amendment,  then,  to  some  other 
cause  than  the  dignity  of  a  State.  There  is  no  difficulty  in  finding 
this  cause.  Those  who  were  inhibited  from  commencing  a  suit 
against  a  State,  or  from  prosecuting  cne  which  might  be  com- 
menced before  the  adoption  of  the  amendment,  were  persons  who 
might  probably  be  its  creditors.  There  was  not  much  reason  to 
fear  that  foreign  or  sister  States  would  be  creditors  to  any  con- 
siderable amount,  and  there  was  reason  to  retain  the  jurisdiction 
of  the  Court  in  those  cases,  because  it  might  be  essential  to  the 
preservation  of  peace.  The  amendment,  therefore,  extended  to 
suits  commenced  or  prosecuted  by  individuals,  but  not  to  those 
brought  by  States.  ... 

What  is  a  suit  ?  .  .  .     In  law  language,  it  is  the  prosecution 
of  some  demand  in  a  Court  of  justice.  ... 

To  commence  a  suit,  is  to  demand  something  by  the  institution 
of  process  in  a  Court  of  justice;  and  to  prosecute  the  suit,  is,  ac- 
cording to  the  common  acceptation  of  language,  to  continue  that 
demand.     By  a  suit  commenced  by  an  individual  against  a  State, 
we  should  understand  process  sued  out  by  that  individual  against 
the  State,  for  the  purpose  of  establishing  some  claim  against  it  by 
the  judgment  of  a  Court;   and  the  prosecution  of  that  suit  is  its 
continuance.      Whatever  may  be  the  stages  of  its  progress,  the 
actor  is  still  the  same.     Suits  had  been  commenced  in  the  Supreme 
Court  against  some  of  the  States  before  this  amenchnent  was  in- 
troduced into  Congress,  and  others  might  be  commenced  before 
it  should  be  adopted  by  the  State  legislatures,  and  might  be  de- 
pending at  the  time  of  its  adoption.     The  object  of  the  amend- 
ment was  not  only  to  prevent  the  commencement  of  future  suits, 
but  to  arrest  the  prosecution  of  those  which  might  be  commenced 
when  this  article  should  form  a  part  of  the  constitution.     It  there- 
fore embraces  both  objects;  and  its  meaning  is,  that  the  judicial 
.  power  shall  not  be  construed  to  extend  to  any  suit  which  may  be 
commenced,  or  which,  if  already  commenced,  may  be  prosecuted 
against  a  State  by  the  citizen  of  another  State.     If  a  suit,  brought 
in  one  Court,  and  carried  by  legal  process  to  a  supervising  Court, 
be  a  continuation  of  the  same  suit,  then  this  suit  is  not  commenced 
nor  prosecuted  against  a  State.     It  is  clearly  in  its  commencement 
the  suit  of  a  State  against  an  individual,  which  suit  is  transferred 
to  this  Court,  not  for  the  purpose  of  asserting  any  claim  against 


COHENS    V.    VIRGINIA.  133 

the  State,  but  for  the  purpose  of  asserting  a  constitutional  defence 
against  a  claim  made  by  a  State. 

A  writ  of  error  is  defined  to  be,  a  commission  by  which  the  judges 
of  one  Court  are  authorized  to  examine  a  record  upon  which  a 
judgment  was  given  in  another  Court,  and,  on  such  examination, 
to  affirm  or  reverse  the  same  according  to  law.  .  .  . 

Under  the  judiciary  act,  the  effect  of  a  writ  of  error  is  simply  to 
bring  the  record  into  Court,  and  submit  the  judgment  of  the  in- 
ferior tribunal  to  re-examination.  It  does  not  in  any  manner  act 
upon  the  parties;  it  acts  only  on  the  record.  It  removes  the 
record  into  the  supervising  tribunal.  Where,  then,  a  State  ob- 
tains a  judgment  against  an  individual,  and  the  Court,  rendering 
such  judgment,  overrules  a  defence  set  up  under  the  constitution 
or  laws  of  the  United  States,  the  transfer  of  this  record  into  the 
Supreme  Court,  for  the  sole  purpose  of  inquiring  whether  the  judg- 
ment violates  the  constitution  or  laws  of  the  United  States,  can, 
with  no  propriety,  we  think,  be  denominated  a  suit  commenced 
or  prosecuted  against  the  State  whose  judgment  is  so  far  re- 
examined. Nothing  is  demanded  from  the  State.  No  claim 
against  it  of  any  description  is  asserted  or  prosecuted.  The  party 
is  not  to  be  restored  to  the  possession  of  anything.  Essentially, 
it  is  an  appeal  on  a  single  point;  and  the  defendant  who  appeals 
from  a  judgment  rendered  against  him,  is  never  said  to  commence 
or  prosecute  a  suit  against  the  plaintiff  who  has  obtained  the  judg- 
ment. The  writ  of  error  is  given  rather  than  an  appeal,  because 
it  is  the  more  usual  mode  of  removing  suits  at  common  law;  and 
because,  perhaps,  it  is  more  technicalh'  proper  where  a  single  point 
of  law,  and  not  the  whole  case,  is  to  be  re-examined.  But  an  ap- 
peal might  be  given,  and  might  be  so  regulated  as  to  effect  every 
purpose  of  a  writ  of  error.  The  mode  of  removal  is  form,  and  not 
substance.  Whether  it  be  by  writ  of  error  or  appeal,  no  claim  is 
asserted,  no  demand  is  made  by  the  original  defendant;  he  only 
asserts  the  constitutional  right  to  have  his  defence  examined  by 
that  tribunal  whose  province  it  is  to  construe  the  constitution  and 
laws  of  the  Union. 

The  only  part  of  the  proceeding  which  is  in  any  manner  personal, 
is  the  citation.  And  what  is  the  citation  ?  It  is  simply  notice 
to  the  opposite  party  that  the  record  is  transferred  into  another 
Court,  where  he  may  appear,  or  decline  to  appear,  as  his  judgment 
or  incHnation  may  determine.  As  the  party  who  has  obtained  a 
judgment  is  out  of  Court,  and  may,  therefore,  not  know  that  his 
cause  is  removed,  common  justice  rec^uires  that  notice  of  the  fact 


134  FEDERAL   GOVERNMENT. 

should  be  given  him.  But  this  notice  is  not  a  suit,  nor  has  it  the 
effect  of  process.  If  the  party  does  not  choose  to  appear,  he  can- 
not be  brought  into  Court,  nor  is  his  failure  to  appear  considered 
as  a  default.  Judgment  cannot  be  given  against  him  for  his  non- 
appearance, but  the  judgment  is  to  be  re-examined,  and  reversed 
or  affirmed,  in  like  manner  as  if  the  party  had  appeared  and  argued 
his  cause. 

The  point  of  view  in  which  this  writ  of  error,  with  its  citation, 
has  been  considered  uniformly  in  the  Courts  of  the  Union,  has 
been  well  illustrated  by  a  reference  to  the  course  of  this  Court  in 
suits  instituted  by  the  United  States.  The  universally  received 
opinion  is,  that  no  suit  can  be  commenced  or  prosecuted  against 
the  United  States;  that  the  judiciary  act  does  not  authorize  such 
suits.  Yet  writs  of  error,  accompanied  with  citations,  have  uni- 
formly issued  for  the  removal  of  judgments  in  favor  of  the  United 
States  into  a  superior  Court,  where  they  have,  like  those  in  favor 
of  an  individual,  been  re-examined,  and  affirmed  or  reversed.  It 
has  never  been  suggested,  that  such  writ  of  error  was  a  suit  against 
the  United  States,  and,  therefore,  not  within  the  jurisdiction  of 
the  appellate  Court. 

It  is,  then,  the  opinion  of  the  Court,  that  the  defendant  who 
removes  a  judgment  rendered  against  him  by  a  State  Court  into 
this  Court,  for  the  purpose  of  re-examining  the  question,  whether 
that  judgment  be  in  violation  of  the  constitution  or  laws  of  the 
United  States,  does  not  commence  or  prosecute  a  suit  against  the 
State,  whatever  may  be  its  opinion  where  the  effect  of  the  writ 
may  be  to  restore  the  party  to  the  possession  of  a  thing  which  he 
demands.  .  .  . 

Motion  denied. 

The  cause  was  argued  on  the  merits. 

D.  B.  Ogden,  for  the  plaintiffs  in  error. 

Webster,  contra. 

Wirt,  Attorney  General,  in  reply. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Two  questions  arise  on  this  act. 

1st.  Does  it  purport  to  authorize  the  corporation  to  force  the 
sale  of  these  lottery  tickets  in  States  where  such  sales  may  be 
prohibited  by  law  ?     If  it  does, 

2d.   Is  the  law  constitutional  ? 

If  the  first  question  be  answered  in  the  affirmative,  it  will  be- 
come necessary  to  consider  the  second.     If  it  should  be  answered  in 


ABLEMAX    r.    BOOTH.  135 

the  negative,  it  will  be  unnecessary,  and  consequently  improper, 
to  pursue  any  inquiries,  which  would  then  be  merely  speculative, 
respecting  the  power  of  Congress  in  the  case.  .  .  . 

The  Corporation  was  merely  empowered  to  authorize  the  draw- 
ing of  lotteries;  and  the  mind  of  Congress  was  not  directed  to  any 
provision  for  the  sale  of  the  tickets  beyond  the  limits  of  the  Cor- 
poration. That  subject  does  not  seem  to  have  been  taken  into 
view.  It  is  the  unanimous  opinion  of  the  Court,  that  the  law  can- 
not be  construed  to  embrace  it. 

Judgynent  affirmed. 


ABLEMAX,  Plaintiff  in  Error,  v.  BOOTH; 

and   UNITED   STATES,  Plaintiff  in  Error,  v.  BOOTH. 

Supreme  Court  of  the  United  States.     1858. 

[21  Howard,  506.] ' 

Error  to  the  Supreme  Court  of  Wisconsin  in  two  cases  in  which 
it  had  discharged  Booth,  on  habeas  corpus,  from  the  custody  of 
officials  of  the  United  States. 

In  the  first  case  Booth  was  discharged  from  the  custody  of  the 
United  States  marshal  to  whose  custody  he  had  been  committed 
by  a  United  States  commi.ssioner,  pending  trial  upon  the  charge 
of  aiding  in  the  escape  of  a  fugitive  slave  from  a  deputy  marshal; 
and  in  the  second  case  Booth  was  discharged  from  the  custody  of 
a  sheriff  who,  under  order  of  the  United  States  District  Court, 
was  imprisoning  him  after  indictment,  trial,  and  conviction  upon 
the  same  charge.  In  each  case  the  State  court  disregarded  as  un- 
con.stitutional  the  fugitive  slave  law  of  1850. 

Black,  Attorney  General,  for  the  plaintiffs  in  error,  no  counsel 
appearing,  contra. 

Taney,  C.  J.,  dehvered  the  opinion  of  the  court-  .  . 

It  will  be  seenj  from  the  foregoing  statement  ofjacts,  that  a 
judge  of  the  Supreme  Court  of  the  State  of  Wisconsin  in  the  first 
of  these  cases,  claimed  and  exercised  the  right  to  supervise  and 
armul  the  proceedings  of  a  commissioner  of  the  United  States,  and 

^  An  abbreviated  statement  has  been  framed  upon  the  opinion. Ed. 


136  FEDERAL    GOVERNMENT. 

to  discharge  a  prisoner,  who  had  been  committed  by  the  commis- 
sioner for  an  offence  against  the  laws  of  this  Government,  and  that 
this  exercise  of  power  by  the  judge  was  afterwards  sanctioned  and 
affirmed  by  the  Supreme  Court  of  the  State. 

In  the  second  case,  the  State  court  has  gone  a  step  further,  and 
claimed  and  exercised  jurisdiction  over  the  proceedings  and  judg- 
ment of  a  District  Court  of  the  United  States,  and  upon  a  sum- 
mary and  collateral  proceeding,  by  habeas  corpus,  has  set  aside 
and  annulled  its  judgment,  and  discharged  a  prisoner  who  had 
been  tried  and  found  guilty  of  an  offence  against  the  laws  of  the 
United  States,  and  sentenced  to  imprisonment  by  the  District 
Court. 

And  it  further  appears  that  the  State  courts  have  not  only 
claimed  and  exercised  this  jurisdiction,  but  have  also  determined 
that  their  decision  is  final  and  conclusive  upon  all  the  courts  of 
the  United  States,  and  ordered  their  clerk  to  disregard  and  refuse 
obedience  to  the  writ  of  error  issued  by  this  court,  pursuant  to  the 
act  of  Congress  of  1789,  to  bring  here  for  examination  and  revision 
the  judgment  of  the  State  court. 

These  propositions  are  new  in  the  jurisprudence  of  the  United  . 
States,  as  well  as  of  the  States;   and  the  supremacy  of  the  State 
courts  over  the  courts  of  the  United  States,  in  cases  arising  under 
the  Constitution  and  laws  of  the  United  States,  is  now  for  the  first 
time  asserted  and  acted  upon  in  the  Supreme  Court  of  a  State.  .  .  . 

The  judges  of  the  Supreme  Court  of  Wisconsin  do  not  distinctly 
state  from  what  source  they  suppose  they  have  derived  this  judi- 
cial power.  There  can  be  no  such  thing  as  judicial  authority, 
unless  it  is  conferred  by  a  Government  or  sovereignty;  and  if  the 
judges  and  courts  of  Wisconsin  possess  the  jurisdiction  they  claim, 
they  must  derive  it  either  from  the  United  States  or  the  State. 
It  certainly  has  not  been  conferred  on  them  by  the  United  States; 
and  it  is  equally  clear  it  was  not  in  the  power  of  the  State  to  confer 
it,  even  if  it  had  attempted  to  do  so;  for  no  State  can  authorize 
one  of  its  judges  or  courts  to  exercise  judicial  power,  by  habeas 
corpus  or  otherwise,  within  the  jurisdiction  of  another  and  inde- 
pendent Government.  And  although  the  State  of  Wisconsin  is 
sovereign  within  its  territorial  limits  to  a  certain  extent,  yet  that 
sovereignty  is  limited  and  restricted  by  the  Constitution  of  the 
United  States.  And  the  powers  of  the  General  Government,  and 
of  the  State,  although  both  exist  and  are  exercised  within  the  same 
territorial  limits,  are  yet  separate  and  distinct  sovereignties,  act- 
ing separately  and  independently  of  each  other,  within  their  re- 


ABLEMAN   V.    BOOTH,  137 

spective  spheres.  And  the  sphere  of  action  appropriated  to  the 
United  States  is  as  far  beyond  the  reach  of  the  judicial  process 
issued  by  a  State  judge  or  a  State  court,  as  if  the  hne  of  division 
was  traced  by  landmarks  and  monuments  visible  to  the  eye.  And 
the  State  of  Wisconsin  had  no  more  power  to  authorize  these  pro- 
ceedings of  its  judges  and  courts,  than  it  would  have  had  if  the 
prisoner  had  been  confined  in  Michigan,  or  in  any  other  State  of 
the  Union,  for  an  offence  against  the  laws  of  the  State  in  which 
he  was  imprisoned.  .  .  . 

Questions  of  this  kind  must  always  depend  upon  the  Constitu- 
tion and  laws  of  the  United  States,  and  not  of  a  State.  The  Con- 
stitution was  not  formed  merely  to  guard  the  States  against 
danger  from  foreign  nations,  but  mainly  to  secure  union  and  har- 
mony at  home;  for  if  this  object  could  be  attained,  there  would  be 
but  little  danger  from  abroad;  and  to  accomplish  this  purpose,  it 
was  felt  by  the  statesmen  who  framed  the  Constitution,  and  by  the 
people  who  adopted  it,  that  it  was  necessary  that  many  of  the 
rights  of  sovereignty  which  the  States  then  possessed  should  be 
ceded  to  the  General  Government;  and  that,  in  the  sphere  of 
action  assigned  to  it,  it  should  be  supreme,  and  strong  enough  to 
execute  its  own  laws  by  its  own  tribunals,  without  interruption 
from  a  State  or  from  State  authorities.  .  .  . 

It  was  essential,  therefore,  to  its  very  existence  as  a  Govern- 
ment, that  it  should  have  the  power  of  establishing  courts  of  justice, 
altogether  independent  of  State  power,  to  carry  into  effect  its  own 
laws;  and  that  a  tribunal  should  be  established  in  which  all  cases 
which  might  arise  under  the  Constitution  and  laws  and  treaties 
of  the  United  States,  whether  in  a  State  court  or  a  court  of  the 
United  States,  should  be  finally  and  conclusively  decided.  With- 
out such  a  tril)unal,  it  is  obvious  that  there  would  be  no  unifor- 
mity of  jurlicial  decision;  and  that  the  supremacy  (which  is  but 
another  name  for  independence),  so  carefully  provided  in  the 
clause  of  the  Constitution  above  referred  to,  could  not  possibly 
be  maintained  peacefully,  unless  it  was  associated  with  this  para- 
mount judicial  authority. 

Accordingly,  it  was  conferred  on  the  General  Government,  in 
clear,  precise,  and  comprehensive  terms.  .  .  . 

Experience  has  demonstrated  that  this  power  was  not  unwisely 
surrendered  by  the  States;  for  in  the  time  that  has  already  elapsed 
since  this  Government  came  into  existence,  several  irritating  and 
angry  controversies  have  taken  place  between  adjoining  States, 
in  relation  to  their  respective  boundaries,  and  which  have  some- 


138  FEDERAL   GOVERNMENT. 

times  threatened  to  end  in  force  and  violence,  but  for  the  power 
vested  in  this  court  to  hear  them  and  decide  between  them. 

The  same  purposes  are  clearly  indicated  by  the  different  lan- 
guage employed  when  conferring  supremacy  upon  the  laws  of  the 
United  States,  and  jurisdiction  upon  its  courts.  In  the  first  case, 
it  provides  that  "  this  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  shall  be  the  supreme 
law  of  the  land,  and  obligatory  upon  the  judges  in  every  State." 
The  words  in  italics  show  the  precision  and  foresight  which  marks 
every  clause  in  the  instrument.  The  sovereignty  to  be  created 
was  to  be  limited  in  its  powers  of  legislation,  and  if  it  passed  a  law 
not  authorized  by  its  enumerated  powers,  it  was  not  to  be  regarded 
as  the  supreme  law  of  the  land,  nor  were  the  State  judges  bound 
to  carry  it  into  execution.  And  as  the  courts  of  a  State,  and  the 
courts  of  the  United  States,  might,  and  indeed  certainly  would, 
often  differ  as  to  the  extent  of  the  powers  conferred  by  the  General 
Government,  it  was  manifest  that  serious  controversies  would 
arise  between  the  authorities  of  the  United  States  and  of  the  States, 
which  must  be  settled  by  force  of  arms,  unless  some  tribunal  was 
created  to  decide  between  them  finally  and  without  appeal. 

The  Constitution  has  accordingly  provided,  as  far  as  human 
foresight  could  provide,  against  this  danger.  And  in  conferring 
judicial  power  upon  the  Federal  Government,  it  declares  that  the 
jurisdiction  of  its  courts  shall  extend  to  all  cases  arising  under 
"  this  Constitution  "  and  the  laws  of  the  United  States  —  leaving 
out  the  words  of  restriction  contained  in  the  grant  of  legislative 
power  which  we  have  above  noticed.  The  judicial  power  covers 
every  legislative  act  of  Congress,  whether  it  be  made  within  the 
limits  of  its  delegated  powers,  or  be  an  assumption  of  power  be- 
yond the  grants  in  the  Constitution.  .  .  . 

We  do  not  question  the  authority  of  State  court,  or  judge,  who 
is  authorized  by  the  laws  of  the  State  to  issue  the  writ  of  habeas 
corpus,  to  issue  it  in  any  case  where  the  party  is  imprisoned  within 
its  territorial  limits,  provided  it  does  not  appear,  when  the  appli- 
cation is  made,  that  the  person  imprisoned  is  in  custody  under  the 
authority  of  the  United  States.  The  court  or  judge  has  a  right 
to  inquire,  in  this  mode  of  proceeding,  for  what  cause  and  by  what 
authority  the  prisoner  is  confined  within  the  territorial  limits  of 
•the  State  sovereignty.  And  it  is  the  duty  of  the  marshal,  or  other 
person  having  the  custody  of  the  prisoner,  to  make  known  to  the 
judge  or  court,  by  a  proper  return,  the  authority  by  which  he  holds 
him  in  custody.     This  right  to  inquire  by  process  of  habeas  corpus, 


ABLEMAN   V.    BOOTH.  139 

and  the  duty  of  the  officer  to  make  a  return,  grows,  necessarily, 
out  of  the  complex  character  of  our  Government,  and  the  existence 
of  two  distinct  and  separate  sovereignties  within  the  same  terri- 
torial space,  each  of  them  restricted  in  its  powers,  and  each  within 
its  sphere  of  action,  prescribed  by  the  Constitution  of  the  United 
States,  independent  of  the  other.  But,  after  the  return  is  made, 
and  the  State  judge  or  court  judicially  apprized  that  the  party  is 
in  custody  under  the  authority  of  the  United  States,  they  can 
proceed  no  further.  They  then  know  that  the  prisoner  is  within 
the  dominion  and  jurisdiction  of  another  Government,  and  that 
neither  the  writ  of  habeas  corpus,  nor  any  other  process  issued  under 
State  authority,  can  pass  over  the  Une  of  division  Vjctween  the 
two  sovereignties.  He  is  then  within  the  dominion  and  exclusive 
jurisdiction  of  the  United  States.  If  he  has  committed  an  offence 
against  their  laws,  their  tribunals  alone  can  punish  him.  If  he  is 
wrongfully  imprisoned,  their  jutlicial  tribunals  can  release  him 
and  afford  him  redress.  And  although,  as  we  have  said,  it  is  the 
duty  of  the  marshal,  or  other  person  holding  him,  to  make  known, 
by  a  proper  return,  the  authority  under  which  he  detains  him,  it 
is  at  the  same  time  imperatively  his  duty  to  obey  the  process  of 
the  United  States,  to  hold  the  prisoner  in  custody  under  it,  and 
to  refuse  ol)edience  to  the  mandate  or  process  of  any  other  Govern- 
ment. And  conseciuently  it  is  his  duty  not  to  take  the  prisoner, 
nor  suffer  him  to  be  taken,  before  a  State  judge  or  court  upon  a 
habeas  corpus  issued  under  State  authority.  No  State  judge  or 
court,  after  they  are  judicially  informed  that  the  party  is  im- 
prisoned under  the  authority  of  the  United  States,  has  any  right 
to  interfere  with  him,  or  to  require  him  to  be  brought  before  them. 
And  if  the  authority  of  a  State,  in  the  form  of  judicial  process  or 
other\^^se,  should  attempt  to  control  the  marshal  or  other  author- 
ized officer  or  agent  of  the  United  States,  in  any  respect,  in  the 
custody  of  his  prisoner,  it  would  be  his  duty  to  resist  it,  and  to 
call  to  his  aid  any  force  that  might  be  necessary  to  maintain  the 
authority  of  law  against  illegal  interference.  No  judicial  process, 
whatever  form  it  may  assume,  can  have  any  lawful  authority  out- 
side of  the  limits  of  the  jurisdiction  of  the  court  or  judge  by  whom 
it  is  issued;  and  an  attempt  to  enforce  it  beyond  these  boundaries 
is  nothing  less  than  lawless  violence. 

Nor  is  there  anything  in  this  supremacy  of  the  General  Gov- 
ernment, or  the  jurisdiction  of  its  juchcial  tribunals,  to  awaken 
the  jealousy  or  offend  the  natural  and  just  pride  of  State  sover- 
eignty.    Neither  the  Government,  nor  the  powers  of  which  we  are 


140  FEDERAL   GOVERNMENT. 

speaking,  were  forced  upon  all  States.  The  Constitution  of  the 
United  States,  with  all  the  powers  conferred  by  it  on  the  General 
Government,  and  surrendered  by  the  States,  was  the  voluntary 
act  of  the  people  of  the  several  States,  deliberately  done,  for  their 
own  protection  and  safety  against  injustice  from  one  another.  .  .  . 

No  power  is  more  clearly  conferred  by  the  Constitution  and 
laws  of  the  United  States,  than  the  power  of  this  court  to  decide, 
ultimately  and  finally,  all  cases  arising  under  such  Constitution 
and  laws;  and  for  that  purpose  to  bring  here  for  revision,  by  writ 
of  error,  the  judgment  of  a  State  court,  where  such  questions  have 
arisen,  and  the  right  claimed  under  them  denied  by  the  highest 
judicial  tribunal  in  the  State.  .  .  . 

The  decisions  in  question  were  made  by  the  supreme  judicial 
tribunal  of  the  State;  and  when  a  court  so  elevated  in  its  position 
has  pronounced  a  judgment  which,  if  it  could  be  maintained,  would 
subvert  the  very  foundations  of  this  Government,  it  seemed  to  be 
the  duty  of  this  court,  when  exercising  its  appellate  power,  to  show 
plainly  the  grave  errors  into  which  the  State  court  has  fallen,  and 
the  consequences  to  which  they  would  inevitably  lead. 

But  it  can  hardly  be  necessary  to  point  out  the  errors  which 
followed  their  mistaken  view  of  the  jurisdiction  they  might  law- 
fully exercise;  because,  if  there  was  any  defect  of  power  in  the 
commissioner,  or  in  his  mode  of  proceeding,  it  was  for  the  tribunals 
of  the  United  States  to  revise  and  correct  it,  and  not  for  a  State 
court.  And  as  regards  the  decision  of  the  District  Court,  it  had 
exclusive  and  final  jurisdiction  by  the  laws  of  the  United  States; 
and  neither  the  regularity  of  its  proceedings  nor  the  validity  of 
its  sentence  could  be  called  in  question  in  any  other  court,  either 
of  a  State  or  the  United  States,  by  habeas  corpus  or  any  other 
process.  .  .  . 

The  judgment  of  the  Supreme  Court  of  Wisconsin  must  there- 
fore be  reversed  in  each  of  the  cases.  .  .  . 


TEXAS   V.    WHITE. 


141 


TEXAS   V.   WHITE  e^aZ. 
Supreme  Court  of  the  United  States.      1869. 

[7  Wallace,  700.]  ^ 

On  original  bill. 

Paschal  and  Merrick,  for  Tej^as. 

Phillips,  Pike,  Carlisle,  and  Moore,  contra. 

Chase,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  an  original  suit  in  this  court,  in  which  the  State  of  Texas, 
claiming  certain  bonds  of  the  United  States  as  her  property,  asks 
an  injunction  to  restrain  the  defendants  from  receiving  pajonent 
from  the  National  government,  and  to  compel  the  surrender  of  the 
bonds  to  the  State.  .  .  . 

It  is  not  to  be  questioned  that  this  court  has  original  jurisdiction 
of  suits  by  States  against  citizens  of  other  States,  or  that  the  States 
entitled  to  invoke  this  jurisdiction  must  be  States  of  the  Union. 
But,  it  is  equally  clear  that  no  such  jurisdiction  has  been  conferred 
upon  this  court  of  suits  by  any  other  political  communities  than 

such  States. 

If,  therefore,  it  is  true  that  the  State  of  Texas  was  not  at  the 
time  of  filing  this  bill,  or  is  not  now,  one  of  the  United  States,  we 
have  no  jurisdiction  of  this  suit,  and  it  is  our  duty  to  dismiss  it. 

We  are  very  sensible  of  the  magnitude  and  importance  of  this 
question,  of  the  interest  it  excites,  and  of  the  difficulty,  not  to  say 
impossibihty,  of  so  disposing  of  it  as  to  satisfy  the  conflicting  judg- 
ments of  men  equally  enlightened,  equally  upright,  and  equally 
patriotic.  But  we  meet  it  in  the  case,  and  we  must  determine  it 
in  the  exercise  of  our  best  judgment,  under  the  guidance  of  the 
Constitution  alone. 

Some  not  unimportant  aid,  however,  in  ascertaining  the  true 
sense  of  the  Constitution,  may  be  derived  from  considering  what 
is  the  correct  idea  of  a  State,  apart  from  any  union  or  confederation 
with  other  States.  The  poverty  of  language  often  compels  the 
employment  of  terms  in  quite  different  significations;  and  of  this 
hardly  any  example  more  signal  is  to  be  found  than  in  the  use  of 
the  word  we  are  now  considering.  It  would  serve  no  useful  pur- 
pose to  attempt  an  enumeration  of  all  the  various  senses  in  which 
it  is  used.     A  few  only  need  be  noticed. 

1  The  statement  has  not  been  reprinted.  —  Ed. 


142  FEDERAL   GOVERNMENT. 

It  describes  sometimes  a  people  or  community  of  individuals 
united  more  or  less  closely  in  political  relations,  inlial)iting  tem- 
porarily or  permanently  the  same  country;  often  it  denotes  only 
the  country  or  territorial  region,  inhabited  by  such  a  community; 
not  unfrequently  it  is  applied  to  the  government  under  which  the 
people  live;  at  other  times  it  represents  the  combined  idea  of 
people,  territory,  and  government. 

It  is  not  difficult  to  see  that  in  all  these  senses  the  primary  con- 
ception is  that  of  a  people  or  community.  The  people,  in  what- 
ever territory  dwelling,  either  temporarily  or  permanently,  and 
whether  organized  under  a  regular  government,  or  united  by 
looser  and  less  definite  relations,  constitute  the  state. 

This  is  undoubtedly  the  fundamental  idea  upon  which  the 
republican  institutions  of  our  own  country  are  established.  It 
was  stated  very  clearly  by  an  eminent  judge,^  in  one  of  the  earliest 
cases  adjudicated  by  this  court,  and  we  are  not  aware  of  anything, 
in  any  subsequent  decision,  of  a  different  tenor. 

In. the  Constitution  the  term  state  most  frequently  expresses 
the  combined  idea  just  noticed,  of  people,  territory'-,  and  govern- 
ment. A  state,  in  the  ordinary  sense  of  the  Constitution,  is  a 
political  community  of  free  citizens,  occupying  a  territory  of  de- 
fined boundaries,  and  organized  under  a  government  sanctioned 
and  limited  by  a  written  constitution,  and  established  by  the  con- 
sent of  the  governed.  It  is  the  union  of  such  states,  under  a  com- 
mon constitution,  which  forms  the  distinct  and  greater  political 
unit,  which  that  Constitution  designates  as  the  United  States,  and 
makes  of  the  people  and  states  which  compose  it  one  people  and 
one  country. 

The  use  of  the  word  in  this  sense  hardly  requires  further  remark. 
In  the  clauses  which  impose  prohibitions  upon  the  States  in  respect 
to  the  making  of  treaties,  emitting  of  bills  of  credit,  and  laying 
duties  of  tonnage,  and  which  guarantee  to  the  States  representa- 
tion in  the  House  of  Representatives  and  in  the  Senate,  are  found 
some  instances  of  this  use  in  the  Constitution.  Others  will  occur 
to  every  mind. 

But  it  is  also  used  in  its  geographical  sense,  as  in  the  clauses 
which  require  that  a  representative  in  Congress  shall  be  an  in- 
habitant of  the  State  in  which  he  shall  be  chosen,  and  that  the 
trial  of  crimes  shall  be  held  within  the  State  where  committed. 

1  Mr.  Justice  Paterson,  in  Penhallow  v.  Doane's  Admrs.,  3  Dallas,  93. 
—  Rep. 


TEXAS    V.    WHITE.  143 


And  there  are  instances  in  which  the  principal  sense  of  the  word 
seems  to  be  that  primary  one  to  which  we  have  adverted,  of  a 
people  or  poUtical  community,  as  distinguished  from  a  govern- 
ment. 

In  this  latter  sense  the  word  seems  to  be  used  in  the  clause  which 
provides  that  the  United  States  shall  guarantee  to  every  State  in 
the  Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion. 

In  this  clause  a  plain  distinction  is  made  between  a  State  and 
the  government  of  a  State. 

Having  thus  ascertained  the  senses  in  which  the  word  state  is 
employed  in  the  Constitution,  we  will  proceed  to  consider  the 
proper  application  of  what  has  been  said. 

The  Republic  of  Texas  was  admitted  into  the  Union,  as  a  State, 
on  the  27th  of  December,  1845.  By  this  act  the  new  State,  and 
the  people  of  the  new  State,  were  invested  with  all  the  rights,  and 
became  subject  to  all  the  responsibilities  and  duties  of  the  original 
States  under  the  Constitution. 

From  the  date  of  admission,  until  1861,  the  State  was  repre- 
sented in  the  Congress  of  the  United  States  by  her  senators  and 
representatives,  and  her  relations  as  a  member  of  the  Union  re- 
mained unimpaired.  In  that  year,  acting  upon  the  theory  that 
the  rights  of  a  State  under  the  Constitution  might  be  renounced, 
and  her  obligations  thrown  off  at  pleasure,  Texas  undertook  to 
sever  the  bond  thus  formed,  and  to  break  up  her  constitutional 
relations  with  the  United  States.  .  .  . 

It  is  needless  to  discuss,  at  length,  the  question  whether  the 
right  of  a  State  to  withdraw  from  the  Union  for  any  cause,  re- 
garded by  herself  as  sufficient,  is  consistent  with  the  Constitution 
of  the  United  States. 

The  Union  of  the  States  never  was  a  purely  artificial  and  arbi- 
trary relation.  It  began  among  the  Colonies,  and  grew  out  of 
common  origin,  mutual  sympathies,  kindred  principles,  similar 
interests,  and  geographical  relations.  It  was  confirmed  and 
strengthened  by  the  necessities  of  war,  and  received  definite  form, 
and  character,' and  sanction  from  the  Articles  of  Confederation. 
By  these  the  Union  was  solemnly  declared  to  "  be  perpetual."  And 
when  these  Articles  were  found  to  be  inadequate  to  the  exigencies 
of  the  countr>^  the  Constitution  was  ordained  "  to  form  a  more 
perfect  Union."  It  is  difficult  to  convey  the  idea  of  indissoluble 
unity  more  clearly  than  by  these  words.  What  can  be  indissolu- 
ble if  a  perpetual  Union,  made  more  perfect,  is  not  ? 


144  FEDERAL   GOVERNMENT. 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right 
of  self-government  by  the  States.  Under  the  Articles  of  Confed- 
eration each  State  retained  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right  not  expressly 
delegated  to  the  United  States.  Under  the  Constitution,  though 
the  powers  of  the  States  were  much  restricted,  still,  all  powers  not 
delegated  to  the  United  States,  nor  prohibited  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people.  And  we  have 
already  had  occasion  to  remark  at  this  term,  that  "  the  people  of 
each  State  compose  a  State,  having  its  own  government,  and  en- 
dowed with  all  the  functions  essential  to  separate  and  independent 
existence,"  and  that  "  without  the  States  in  union,  there  could 
be  no  such  political  body  as  the  United  States."  Not  only, 
therefore,  can  there  be  no  loss  of  separate  and  independent  auton- 
omy to  the  States,  through  their  union  under  the  Constitution, 
but  it  may  be  not  unreasonably  said  that  the  preservation  of  the 
States,  and  the  maintenance  of  their  governments,  are  as  much 
within  the  design  and  care  of  the  Constitution  as  the  preservation 
of  the  Union  and  the  maintenance  of  the  National  government. 
The  Constitution,  in  all  its  provisions,  looks  to  an  indestructible 
Union,  composed  of  indestructible  States. 

When,  therefore,  Texas  became  one  of  the  United  States,  she 
entered  into  an  indissoluble  relation.  All  the  obligations  of  per- 
petual union,  and  all  the  guaranties  of  republican  government  in 
the  Union,  attached  at  once  to  the  State.  The  act  which  con- 
summated her  admission  into  the  Union  was  something  more  than 
a  compact;  it  was  the  incorporation  of  a  new  member  into  the 
political  body.  And  it  was  final.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual,  and  as  indissoluble 
as  the  union  between  the  original  States.  There  was  no  place  for 
reconsideration,  or  revocation,  except  through  revolution,  or 
through  consent  of  the  States. 

Considered  therefore  as  transactions  under  the  Constitution, 
the  ordinance  of  secession,  adopted  by  the  convention  and  ratified 
by  a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of  her  legis- 
lature intended  to  give  effect  to  that  ordinance,  were  absolutely 
null.  They  were  utterly  without  operation  in  law.  The  obliga- 
tions of  the  State,  as  a  member  of  the  Union,  and  of  every  citizen 
of  the  State,  as  a  citizen  of  the  United  States,  remained  perfect  and 
unimpaired.     It  certainly  follows  that  the  State  did  not  cease  to 


TEXAS    V.    WHITE.  145 

be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union.  If  this 
were  otherwise,  the  State  must  have  become  foreign,  and  her 
citizens  foreigners.  The  war  must  have  ceased  to  be  a  war  for  the 
suppression  of  rebclhon,  and  must  have  become  a  war  for  conquest 
and  subjugation. 

Our  conclusion,  therefore,  is  that  Texas  continued  to  be  a  State, 
and  a  State  of  the  Union,  notwithstanding  the  transactions  to 
which  we  have  referred.  And  this  conclusion,  in  our  judgment, 
is  not  in  conflict  with  any  act  or  declaration  of  any  department 
of  the  National  government,  but  entirely  in  accordance  with  the 
whole  series  of  such  acts  and  declarations  since  the  first  outbreak 
of  the  rebellion. 

But  in  order  to  the  exercise,  by  a  State,  of  the  right  to  sue  in 
this  court,  there  needs  to  be  a  State  government,  competent  to 
represent  the  State  in  its  relations  with  the  National  government, 
so  far  at  least  as  the  institution  and  prosecution  of  a  suit  is  con- 
cerned. 

And  it  is  by  no  means  a  logical  conclusion,  from  the  premises 
which  we  have  endeavored  to  establish,  that  the  governmental 
relations  of  Texas  to  the  Union  remained  unaltered.     Obligations 
often  remain  unimpaired,   while  relations  are  greatly  changed. 
The  obligations  of  allegiance  to  the  State,  and  of  obedience  to  her 
laws  subject  to  the  Constitution  of  the  United  States,  are  binding 
upon  all  citizens,  whether  faithful  or  unfaithful  to  them;  but  the 
relations  which  subsist  while  these  obligations  are  performed,  are 
essentially  different  from  those  which  arise  when  they  are  disre- 
garded and  set  at  nought.     And  the  same  must  necessarily  be  true 
of  the  obligations  and  relations  of  States  and  citizens  to  the  Union. 
No  one  has  been  bold  enough  to  contend  that,  while  Texas  was 
controlled  by  a  government  hostile  to  the  United  States,  and  in 
affiliation  with  a  hostile  confederation,   waging  war  upon  the 
United  States,  senators  chosen  by  her  legislature,  or  representa- 
tives elected  by  her  citizens,  were  entitled  to  seats  in  Congress; 
or  that  any  suit,  instituted  in  her  name,  could  be  entertained  in 
this  court.     All  admit  that,  during  this  condition  of  civil  war,  the 
rights  of  the  State  as  a  member,  and  of  her  people  as  citizens  of 
the  Union,  were  suspended.     The  government  and  the  citizens  of 
the  State,  refusing  to  recognize  their  constitutional  obligations, 
assumed  the  character  of  enemies,  and  incurred  the  consequences 
of  rebellion. 


146  FEDERAL   GOVERNMENT. 

These  new  relations  imposed  new  duties  upon  the  United  States. 
The  first  was  that  of  suppressing  the  rebelHon.  The  next  was 
that  of  re-establishing  the  broken  relations  of  the  State  with  the 
Union.  The  first  of  these  duties  having  beeii  performed,  the 
next  necessarily  engaged  the  attention  of  the  National  govern- 
ment. 

The  authority  for  the  performance  of  the  first  had  been  found 
in  the  power  to  suppress  insurrection  and  carry  on  war;  for  the 
performance  of  the  second,  authority  was  derived  from  the  obli- 
gation of  the  Uriited  States  to  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government.  The  latter,  indeed,  in 
the  case  of  a  rebellion  which  involves  the  government  of  a  State, 
and  for  the  time  excludes  the  National  authority  from  its  limits, 
seems  to  be  a  necessary  complement  to  the  former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration.  When 
the  war  closed  there  was  no  government  in  the  State  except 
that  which  had  been  organized  for  the  purpose  of  waging  war 
against  the  United  States.  That  government  immediately  dis- 
appeared. ... 

There  being  then  no  government  in  Texas  in  constitutional 
relations  with  the  Union,  it  became  the  duty  of  the  United  States 
to  provide  for  the  restoration  of  such  a  government.  But  the 
restoration  of  the  government  which  existed  before  the  rebellion, 
without  a  new  election  of  officers,  was  obviously  impossible;  and 
before  any  such  election  could  be  properly  held,  it  was  necessary 
that  the  old  constitution  should  receive  such  amendments  as  would 
conform  its  provisions  to  the  new  conditions  created  by  emanci- 
pation, and  afford  adequate  security  to  the  people  of  the  State.  .  .  . 

Almost  immediately  after  the  cessation  of  organized  hostilities, 
and  while  the  war  yet  smouldered  in  Texas,  the  President  of  the 
United  States  issued  his  proclamation  appointing  a  provisional 
governor  for  the  State,  and  providing  for  the  assembling  of  a  con- 
vention, with  a  view  to  the  re-establishment  of  a  republican  govern- 
ment, under  an  amended  constitution,  and  to  the  restoration  of 
the  State  to  her  proper  constitutional  relations.  A  convention 
was  accordingly  assembled,  the  constitution  amended,  elections 
held,  and  a  State  government,  acknowledging  its  obligations  to 
the  Union,  established. 

Whether  the  action  then  taken  was,  in  all  respects,  warranted 
by  the  Constitution,  it  is  not  now  necessary  to  determine.  The 
power  exercised  by  the  President  was  supposed,  doubtless,  to  be 
derived  from  his  constitutional  functions,  as  commander-in-chief; 


TEXAS   V.    WHITE.  147 

and,  so  long  as  the  war  continued,  it  cannot  be  denied  that  he 
might  institute  temporary  government  within  insurgent  districts, 
occupied  by  the  National  forces,  or  take  measures,  in  any  State, 
for  the  restoration  of  State  government  faithful  to  the  Union, 
employing,  however,  in  such  efforts,  only  such  means  and  agents 
as  were  authorized  by  constitutional  laws. 

But,  the  power  to  carry  into  effect  the  clause  of  guaranty  is 
primarily  a  legislative  power,  and  resides  in  Congress.  .  .  . 

The  action  of  the  President  must,  therefore,  be  considered  as 
provisional,  and,  in  that  light,  it  seems  to  have  been  regarded  by 
Congress.  It  was  taken  after  the  term  of  the  38th  Congress  had 
expired.  The  39th  Congress,  which  assembled  in  December, 
1865,  followed  by  the  40th  Congress,  which  met  in  March,  1867, 
proceeded,  after  long  deliberation,  to  adopt  various  measures  for 
reorganization  and  restoration.  These  measures  were  embodied 
in  proposed  amendments  to  the  Constitution,  and  in  the  acts 
known  as  the  Reconstruction  Acts,  which  have  been  so  far  carried 
into  effect,  that  a  majority  of  the  States  which  were  engaged  in 
the  rebellion  have  been  restored  to  their  constitutional  relations, 
under  forms  of  government,  adjudged  to  be  republican  by  Con- 
gress, through  the  admission  of  their  ''  Senators  and  Representa- 
tives into  the  councils  of  the  Union."  .  .  . 

What  has  thus  been  said  generally  describes,  with  sufficient 
accuracy,  the  situation  of  Texas.  A  provisional  governor  of  the 
State  was  appointed  by  the  President  in  1865;  in  1866  a  governor 
was  elected  by  the  people  under  the  constitution  of  that  year;  at 
a  subsequent  date  a  governor  was  appointed  by  the  commander 
of  the  district.  Each  of  the  three  exercised  executive  functions 
and  actually  represented  the  State  in  the  executive  department. 

In  the  case  before  us  each  has  given  his  sanction  to  the  prosecu- 
tion of  the  suit.  .  .  . 

On  the  whole  case,  therefore,  our  conclusion  is  that  the  State  of 
Texas  is  entitled  to  the  relief  sought  by  her  bill,  and  a  decree  must 
be  made  accordingly. 

Grier,  J.,  dissenting. 

I  regret  that  I  am  compelled  to  dissent  from  the  opinion  of  the 
majority  of  the  court  on  all  the  points.  .  .  . 

SwAYNE,  J.  I  concur  with  my  brother  Grier  as  to  the  incapa- 
city of  the  State  of  Texas,  in  her  present  condition,  to  maintain 
an  original  suit  in  this  court.     The  question,  in  my  judgment,  is 


148  FEDERAL   GOVERNMENT. 

one  in  relation  to  which  this  court  is  bound  by  the  action  of  the 
legislative  department  of  the  government. 

Upon  the  merits  of  the  case,  I  agree  with  the  majority  of  my 
brethren. 

I  am  authorized  to  say  that  my  brother  Miller  unites  with  me 
in  these  views. 


THE  COLLECTOR  v.   DAY. 
Supreme  Court  of  the  United  States.     1870. 

[11  Wallace,  113.]  ^ 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Massachusetts. 

Congress  having  passed  laws  for  taxing  incomes,  the  collector 
of  internal  revenue  collected  this  tax  upon  the  official  salary  of 
Day,  a  judge  of  the  Court  of  Probate  for  the  County  of  Barnstable, 
State  of  Massachusetts; and  thereupon  Day,  who  had  paid  the  tax 
under  protest,  brought  this  action  to  recover  it.  The  case  was 
submitted  on  an  agreed  statement  of  facts;  and  judgment  was 
given  for  the  plaintiff. 

Akerman,  Attorney  General,  and  Ropes,  for  the  plaintiff  in  error; 
and  D wight  Foster,  contra. 

Nelson,  J.,  delivered  the  opinion  of  the  court. 

The  case  presents  the  question  whether  or  not  it  is  competent  _ 
for  Congress,  under  the  Coftatlluiiun  of  the  United  States,  to  im- 
pose a'  tax  lipon  the  salary  of  a  judicial  officer  of  a  State. 

In  Dobbins  v.  'i'ne  uommissioners  of  Jilrle  County,  16  Peters, 
435,  it  was  decided  that  it  was  not  competent  for  the  legislature 
of  a  State  to  levy  a  tax  upon  the  salary  or  emoluments  of  an  offisifir 
"oTthe  United  States.  I'he  ctecision  was  placed^amly  upon  the 
ground  that  the  officer  was^  m^^atis  or'  mstrumentality  employed 
for  carrying  into  effect  some  of  the  legitimate  powers  of  the  govern- 
IneTrtT^vhiTrlrgornH^not  he  interfered  withj)v  taxation  or  otherwise 
by  the  States,  and  that  the  salary  or  nnmppnsatimi  for  tJh£servfeg- 

The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


THE    COLLECTOR   V.    DAY.  149 

of  the  officer  was  inseparably  connected  with  the  office;  that  if  the 
officer,  as  such,  was  exempt,  the  salary  asslgnedTforliis  support  or 
maintenance  while  holding  the  office  was  also,  for  like  reasons, 
equally  exempt..^  .  . 

TfTs  conceded  in  the  case  of  McCulloch  v.  Maryland,  4  Wheaton, 
316,  that  the  power  of  taxation  by  the  States  was  not  abridged  by 
the  grant  of  a  similar  power  to  the  government  of  the  Union;  that 
it  was  retained  by  the  States,  and  that  the  power  is  to  be  concur- 
~  rently  exercised  by  the  two  governments;  "and  also  that  there  is 
no  express  constitutional  prohil2ition  upon  the  States  against  tax- 
ing the  means  or  instrumentalities  of  the  general  government. 
3iit,  it.  \v!w  liplil^  nnd.  we  agree  properly  held,  to  be  prohibited  by  ^ 
necessary  implication:  otherwise,  the  States  might  impose  taxa- 
tion  to  an  extent  that  would  impair,  if  not  wholly  defeat,  the 
operations  of  the  Federal  authorities  when  acting  in  their  appro- 
priate sphere.  .  .  . 

It  is  a  familiar  rule  of  construction  of  the  Constitution  of  the 
Union,  that  the  sovereign  powers  vested  in  the  State  governments 
by  their  respective  constitutions,  remained  unaltered  and  un-__ 
impaired,  except  so  far  as  they  were  granted  to  the_gQvernmenl_ 
of  tiie  United  States.  Tliat  the  intention  of  the  framers  of  the 
Constitution  in  this  respect  might  not  be  misunderstood,  this  rule 
of  interpretation  is  expressly  declared  in  the  tenth  article  of  the 
amendments,  namely:  ^'  The  powers  not  delegated  to  the  United 
States  ore  reserved  to  tlio  Sf.-it(v^  rfspectively,  or  to  the  people." 
The  government  of  tlie  Ignited  States,  therefore,  can  claim  no 
powers  which  are  not  granted  to  it  bv  the  Constitution,  and  the 
powers  actually  granted  must  be  f^yf^  -'<"'  «''e  expressly  given,  or 
given  by  necessary  implication. 

The  general  govbrnment,  and  the  States,  although  both  exist 
within  the  same  territorial  limits,  are  separate  and  distinct  sov- 
ereignties, acting  separately  and  independently  of  each  other, 
within  their  respective  spheres.  The  former  in  its  appropriate 
sphere  is  supreme;  but  the  States  within  the  limits  of  their  powers 
V^^^I^MHi^fdri,-  or,  in  the  language  of  the  tenth  amendment,  "  re- 
served.''  are  as  jndepenrlent,  of  the  general  government  as  that 
government  within  its  sphere  is  independent  of  the  States. 

Tne  relations  existmg  between  the  two  governments  are  well 
stated  by  the  present  Chief  Justice  in  the  case  of  Lane  County  v. 
Oregon,  7  Wallace,  71,  76.      "Both  the  States  and  the  United, 
States,"   he  observed,    ^' evisted   V^ofnro  f|]p  Conj^titntioT]^      The 
people,  through  that  instrument,  established  a  more  perfect  union. 


150  FEDEEAL   GOVERNMENT. 

_hY  substituting  a  National  government,  acting  with  ample  powers 
~directlv  upon  the  citizens,  instead  of  the  Confederate  govcmmentj^ 
~  which  acted  with  powers  greatly  restricted,  only  upon  the  States. 
But,  in  many  of  the  articles  of  the  Constitution,  the  necessary 
existence  of  the  States,  and  within  their  proper  spheres,  the  inde- 
pendent authority  of  the  States,  are  distinctly  recognized.  To 
them  nearly  the  whole  charge  of  interior  regulation  is  committed 
nrjpft;  to  them,  and  to  the  people,  all  powers,  not  expressly  dele-^ 
gated  to  the  National  government,  are  reserved."  Upon  looking 
into  the  Constitution  it  will  be  found  that  but  aTfew  of  the  articles 
in  that  instrument  could  be  carried  into  practical  effect  without 
the  existence  of  the  States.  .  .  . 

Judgment  affirmed. 

Bradley,  J.,  dissenting. 

I  dissent  from  the  opinion  of  the  court  in  this  case,  because,  it 
seems  to  me  that  the  general  government  has  the  same  power  of 
taxing  the  income  of  officers  of  the  State  governments  as  it  has  of 
taxing  that  of  its  own  officers.  It  is  the  common  government 
of  all  alike;  and  every  citizen  is  presumed  to  trust  his  own  govern- 
ment in  the  matter  of  taxation.  No  man  ceases  to  be  a  citizen  of 
the  UnitedStates  bv  being  an  offieer  imder  th^  StntP  p;nvprnTinpnt. 
1  cannot  accede  to  the  doctrine  that  the  general  government  is  to 
be  regarded  as  in  any  sense  foreign  or  antagonistic  to  the  State 
governments,  their  officers,  or  people;  nor  can  I  agree  that  a  pre- 
sumption can  be  admitted  that  the  general  government  will  act 
in  a  manner  hostile  to  the  existence  or  functions  of  the  State  gov- 
ernment, which  are    constituent  parts  of  the  system  or  body 

'  poUtic  forming  the  basis  on  which  the  general  government  is 
founded.  The  taxation  by  the  State  governments  of  the  instru- 
ments employed  by  the  general  government  in  the  exercise  of  its 
powers,  is  a  very  different  thing.  Such  taxation  involves  an  inter- 
ference with  the  powers  of  a  government  in  which  other  States 
and  their  citizens  are  equally  interested  with  the  State  which  im- 
poses the  taxation.  In  my  judgment,  the  limitation  of  the  power 
of  taxation  in  the  general  government,  \vhic^ft4ke^!-ipmmmlmkmi/J0^ 
establishes,  will  be  found  very  difficult  of  control.  Where  are  we 
to  stop  in  enumerating  the  functions  of  the  State  governments 
which  will  be  interfered  with  by  Federal  taxation  ?  If  a  State 
incorporates  a  railroad  to  carry  outJ^«  pnrposps  of  internal  im- 
"proveuiCiiL,  ui'  a  bdiitrto  aid  its  nnanciaLarrangements,  reserving^ 
perhapsTXpercentage  on  the  stock  orprofitsTlor  thejupply  of  its 

'  oWn  tfeasurv.  will  the  bonds  or  stdcTrg^such  an'mstitution_be_ 


KOHL   V.    UNITED   STATES.  151 

free  from  Federal  taxation  ^  How  can  we  now  tell  what  the  effect 
ofthis  decision  will  be  ?  I  cannot  but  regard  it  as  founded  on  a 
fallacy,  and  that  it  ^yill  lead  to  mischievous  consequences.  I  am 
as  much  opposed  as  any  one  can  be  to  any  interference  by  the 
general  government  with  the  just  powers  of  the  State  governments. 
But  no  concession  of  any  of  the  just  powers  of  the  general  govern- 
ment can  easily  be  recalled.  I,  therefore,  consider  it  my  duty  to 
at  least  record  mv  dissent  when  such  concession  appears  to  be" 
made.  An  extended  discussion  of  the  subject  would  answer  no 
useful  purpose. 


KOHL  et  al.  v.  UNITED  STATES. 
Supreme  Court  of  the  United  States.     1875. 

[91  United  Stales,  367.)  i 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 

.  This  was  a  proceeding  instituted  by  the  United  States  to  appro- 
priate land  in  the  city  of  Cincinnati  as  a  site  for  a  post-office  and 
other  public  uses,  in  accordance  with  Acts  of  Congress  of  IMarch 
2,  1872,  June  10,  1872,  and  March  3,  1873.  A  motion  to  dismiss 
for  want  of  jurisdiction  was  overruled,  and  after  exception  to  this 
and  another  ruling,  judgment  was  rendered  for  the  United  States. 

Kittredge,  for  plaintiffs  in  error. 

Smith,  Assistant  Attorney  General,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  court. 

It  has  not  been  seriouslv  rontenrlfd  dnringr  the  argument  thi\^ 
th?  L  nitod  States  government  is  without  power  to  appropriatg 
lands  or  other  T)roporty  within  the  States  for  its  own  iisps,  and 
Ujonahieit  tu  ix'rform  its  proper  functions.     Such  an  authoritv^ 


scntial  to  its  independent  existence  and  perpetuitv.  These 
cannot  be  preserved  if  the  obstinacy  of  a  private  person,  or  if  any 
other  authority,  can  prevent  the  acquisition  of  the  means  or  in- 
struments by  which  alone  governmental  functions  can  be  per- 
formed. T^pr^Avorg  YPl^ted  by  the  Constitution  in  the  {rf^npr.q| 
government  demand  for  their  exercise  the  acquisition  of  lands  in 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


152 


FEDERAL   GOVERNMENT. 


all  the  States.  These  are  needed  for  forts,  armories,  and  arsenals, 
for  navy-yards  and  light-houses,  for  custom-houses,  post-offices, 
and  court-houses,  and  for  other  pulilic  uses.      If  the  right  to  ac- 


quire  proncrtv  for  such  uses  may  be  made  a  l^arren  right  by  the 

unwillingness  of  property-holders  to  sell,  or  by  the  action  of  ik 

State  prohil)itmg  a  sale  to  the  i^  ederal  government,  the  constitu- 

^  tional  grants  of  power  may  be  rendered  nugatoryTand  thegovern- 

mont  is  dependent  for  its  practical  existence  upon  the  will  of  a 

State,  or  even  upon  that  of  a  private  citizen.      This  cannot  be. 

'~Nol)ne  doubts  the  existence  in  the  State  governments  of  the  right 

J)f  eminenrnoliiainr^  a  right  distmc-t  from  and  p'afaniuunt  to  the 

right  of  ultimate  ownership.      It  grows  out  of  the  necessities  of 

their  being,  not  out  of  the  tenure  by  which  lands  are  held.     It 

may  be  exer^js^^^  ^hoimh  fhp  l-^iyl^  «rf>  nnt  holLUw^mnt.  from  thp 

government,  either  mcdiatelxJ2L  imrnediately^_and^indepen(lent 
o^the  consideratijQiX-jdie4bcr  they  wouw-ef^^£at4Q-^he-^vern-~^ 
ment  in  case  ofa  failureof  heirs.  The  right  is  the  offspring  of 
political  necessity;  and  ITis  inseparable  from  sovereignty,  unless 
denied  to  it  by  its  fundapaental  law.  Vattel,  c.  20,  34;  Bynk., 
lib.  2,  c.  15;  Kent's  Com.,  338-340;  Cooley  on  Const.  Lim.,  584 
et  seq.  But  it  is  no  more  necessary  for  the  exercise  of  the  powers 
of  a  State  government  than  it  is  for  the  exercise  of  the  coticeded 
powers  of  the  Federal  government.  That  government  is  as  sov- 
ereign within  its  sphere  as  the  States  are  within  theirs.  True,  its 
sphere  is  limited.  Certain  subjects  only  are  committed  to  it:  but 
its  power  over  those  subjects  is  as  full  and  complete  as  is  the  power 
of  the  States  over  the  subjects  to  w^hich  their  sovereignty  extends. 
The  power  is  not  changed  by  its  transfer  to  another  holder.' 

But,  if  the  right  of  eminent  domain  exists  iiL  the  Federal  gov- 
ernment, it  is  a  right  which  may  be  exercisedwithin  the^tates, 

the  powers  conferred 


so  far  as  is  necessary  to  the  enjo^inent 

upon  it  by  the_L'onstitution7  InAbleman  v.  Booth,  21  How.  523, 
Chief  Justice  Taney  described  in  plain  language  the  complex 
nature  of  our  government,  and  the  existence  of  two  distinct  and 
separate  sovereignties  within  the  same  territorial  «p»rfit  Mf1''ll  pf 
them  restricted  in  its  powers,  and  each,  within  its  sphere  of  action 
prescribed  by  the  Constitution  of  the  United  States,  independent 
of  the  other.  Neither  is  unde£_the  nficeasi^^^-ol^pplying  to  the 
other  for  permission  to  exercise  its  lawful  powers.  Within  its 
own  sphere,  it^ay  employ  all  Xhe  agencie5~"frn»^xerting  them 
which  are  appropriate  or  necessary,  and  which  are  not  forbidden 
by  the  law  of  its  being.     When  the  power  to  establish  post-offices 


KOHL    V.    UNITED    STATES. 


153 


means  "as  were  knm\Ti  and  aT)propriate.  The  right  of  eminent 
domain  wasone  of  those  means  well  known  when  the  Constitution 
was  adopted,  and  employed  to  obtain  lands  for  public  uses.  Its 
existence,  therefore,  in  the  grantee  of  that  power,  ought  not  to  be 
questioned.  The  Constitution  itself  contains  an  imphed  recogni- 
tion of  it  beyond  what  may  justly  be  implied  from  the  express 
grants.  The  fifth  amendment  contains  a  provision  that  private^ 
proportv  siiall  not  beTaTcen7orput)li(-  use  Avjthout  just  compensa^ 
'iU;^.      "u-wtj^  ^l,..t  Imt  Mn  itn])lic(]  assertion,  that,  on  m^aHng 


lUst  c'^pensation.  it  mav  be  taken.  ? 

It  is  true,  this  i)0wer  of  the  Federal  government  hasjiQt  hereto 
foTclTTeFexerciseil  luiviTseiy;  but  the  non-nser  of  a  jiQW£iLdoes 
^I^^rrrTsorove  its  existence.      In  some  instances,  the  States,  by 


virtue  of  their  oxviT right  of  eminent  domain,  have  condemned 
lands  for  the  use  of  the  general  government,  and  such  condemna- 
tions have  been  sustained  by  their  courts,  without,  however, 
denying  the  right  of  the  United  States  to  act  independently  of  the 
States.  Such  was  the  ruling  in  C.ilmer  v.  Lime  Point,  18  Cal.  229, 
where  lands  were  condemned  l)y  a  proceeding  in  a  State  court  and 
under  a  State  law  for  a  United  States  fortification.  A  similar 
decision  was  made  in  Burt  v.  The  Merchants'  Ins.  Co.,  106  Mass. 
356,  where  land  was  taken  under  a  State  law  as  a  site  for  a  post- 
office  and  sub-treasury  building.  Neither  ofthese  ca.ses  denies 
the  right  of  the  Federal  government  to  luivi ~ lancIsJn_the_States 
'7:7^,h.mnf.fl  b.pts  uses  under  its_aiu£5ag(Tlm(rnyits  own  acBon. 


The  question  was  whether  the  State  could  takelands  forany^)ther- 
public  use  than  that  of  the  State.      In  Trombley  v.  Humphrey, 
23  Mich.  471,  a  different  doctrine  was  as.serted,  founded,  we  think, 
upon  better  reason.      Thejjropfir^view^^       right  of  eminent 
dom3iii.£eerns_toj3ejJhatJi^^ 
0'ia^eprop(n^  y  for  its_ownj2ublicuses^_a^^ 
_,..^""^t}ir-r.     B^^5x)n?tTlTatrthere~exrst^^  is 

the  foundation  of  the  right.  If  the  United^tt^s  h;iYi-  thejx)wei> 
it  must  be  complete  in  itself.  It  can  neither  be  enlarged  nor 
diminished  by  a  State.  Nor  can  any  State  prescribe  the  manner 
in  which  it  must  be  exercised.  Til£_consentofaState_^^ 
be  a  condition  precedent^ to  its  enjoymenT  Such  consent  is 
"needed  only,  if  at  all,  foTtKe^Lrunsfer  Tjf^nsdiction  and  of  the 
right  of  exclusive  legislation  after  the  land  shall  have  been  acquired. 


154  FEDERAL    GOVERNMENT. 

It  may,  therefore,  fairly  be  concluded  that  the  proceeding  in 
the  case  we  have  in  hand  was  a  proceeding  by  the  United  States 
government  in  its  own  right,  and  by  virtue  of  its  own  eminent 
domain.  .  .  . 

The  judgment  of  the  Circuit  Court  is  affirmed.^ 

Field,  J.,  dissenting.  ... 

The  Federal  courts  have  no  inherent  jurisdiction  of  a  proceeding 
instituted  for  the  condemnation  of  property ;  and  I  do  not  find  any 
statute  of  Congress  conferring  upon  them  such  authority.  ,  .  . 


CLAFLIN  V.  HOUSEMAN,  Assignee. 

Supreme  Court  of  the  United  States.     1876. 

[93  United  States,  130.]  '^ 

Error  to  the  Supreme  Court  of  New  York. 

In  the  Supreme  Court  of  New  York  for  the  County  of  Kings, 
action  was  brought  by  an  assignee  in  bankruptcy,  under  the  Bank- 
rupt Act  of  the  United  States,  of  1867,  to  recover  money  obtained 
on  a  judgment  which  had  been  taken  against  the  bankrupt  by 
default  within  four  months  before  the  proceedings  in  bankruptcy, 
the  intent  of  the  bankrupt  having  been,  as  alleged,  to  give  a 
preference  in  fraud  of  the  Act.  The  defendant  demurred  to  the 
complaint,  one  ground  being  that  the  court  had  no  jurisdiction  of 
the  subject  of  the  action.  Judgment  having  been  rendered  for 
the  plaintiff  and  having  been  affirmed  both  by  the  General  Term 
and  by  the  Court  of  Appeals,  the  judgment  was  brought  before 
the  Supreme  Court  of  the  United  States  by  writ  of  error  under 
the  second  section  of  the  Act  of  Feb.  5,  1867  (14  U.  S.  Stats,  at 
Large,  385). 

W.  H.  Arnoux,  for  plaintiff  in  error. 

B.  F.  Lee,  for  defendant  in  error. 

1  See  United  States  v.  Jones,  109  U.  S.  513  (1S83);  Luxton  v.  North  River 
Bridge  Co.,  153  U.  S.  525  (1894).  —  Ed. 

2  An  abbreviated  statement  has  been  presented.  —  Ed. 


CLAFLIN    V.    HOUSEMAN.  155 

Bradley,  J.,  delivered  the  opinion  of  the  court. 

The  point  principally  relied  on  by  the  plaintiff  in  error  is,  that 
an  assignee  in  bankruptcy  cannot  sue  in  the  State  courts. 

It  is  argued  that  the  cause  of  action  arises  purely  and  solely  out 
of  the  provisions  ot  arTact  of  Congress,  and  can  only  be  prosecuted 
in  the  courts  of  the  United  States,  the  Ijstate  courts  having  no" 


jurisdiction  over  the  subject.  .  .  . 
~  me  assignee,  by  the  lourtecnth  section  of  the  Bankrupt  Act 
(Rev.  Stat.,  sect.  5046),  becomes  invested  with  all  the  bankrupt's 
rights  of  action  for  property,  and  actions  arising  from  contract^ 
~or  ihe  unlawiul  taking  or  detention  of  or  injury  to  property,  amL 
a  right  to  sue  for  the  same.  The  actions  which  lie  in  suchcases 
are  common-law  actions,  (ejectment,  trespass,  trover,  assumpsit^ 
debt,  etc.,  or  suim  111  t'dUllv^  Of  tliese  actions  and  suits  the  State 
courts  have  cognizance.  Why  should  not  an  assignee  have  power 
to  brmg'them  in  those  courts,  .-is  wi-11  .-is  otfu'r  persons  ?  Aliens 
and  foreign  corporations  may  brinp;  thein^  The  assignee  simply 
derives  his  title  thnjugli  a  law  of  the  United  States.  Should  not 
that  title  be  respected  by  the  State  courts  ? 

Tiie  case  is  exactly  the  same  as  that  of  the  Bank  of  the  United 
States.  The  first  bank,  chartered  in  1791,  had  capacity  given 
it  "  to  sue  and  be  sued  ...  in  courts  of  record,  or  any  other  place 
whatsoever."  It  was  held,  in  The  Bank  v.  Deveaux,  5  Cranch, 
61,  that  this  did  not  authorize  the  bank  to  sue  in  the  courts  of  the 
United  States,  without  showini';  proper  citizenship  of  the  parties. 
in  different  States.  The  bank  was  obliged  to  sue  in  the  State 
courts.  And  yet  here  was  a  right  arising  under  a  law  of  the  United 
States,  as  mucli  so  as  can  be  affirmed  of  a  case  of  an  assignee  in 
bankriiT>ttH>T — -¥iir-second  bank  of  the  United  States  had  express 
capacity  "  to  sue  and  be  sued  in  all  State  courts  having  competent 
jurisdiction,  and  in  any  Circuit  Court  of  the  United  States."  In 
the  case  of  Osborn  v.  The  Bank,  9  Wheat.  7.38,  815,  it  was  objected 
that  Congress  had  not  authority  to  enable  the  bank  to  sue  in  the 
Federal'courts  merely  because  of  its  being  created  by  an  act  of 
Congress.  But,th£-CQml  held  otherwise.  ancT sustained  its  right 
to  sue  therein.  No  question  was  made  of  its  right  to  sue  in  the  _ 
State  coxjii^r- 

Under  the  bankrupt  law  of  1841,  ;^ith  substantially  the  same 
projvisions  on  this  subject  as  the  present  law,  it  wai~held  that  the 
assignee  could  siie  in  the  State  rnurts.  Ex  parte  Christie,  3  How. 
318,319;  Nugent  v.  Boyd,  ibid.  426;  Wood  v.  Jenkins,  10  Met. 
583. 


156  FEDERAL   GOVERNMENT. 

Other  analogous  cases  have  occurred,  and  the  same  result  has 
been  reached;  the  generalprinciple  being,  that,  where  jurisdic- 
tion may  he  coiiferred  on  the  United  States  courts,  it  may  be 

made  exclusive  where  not  so  by  the  Constitution  itself;  but^Jif 
"exclusive  jurisdiction  be  neither  express  nor  implied,  the  Stata, 
court s  have  concurrent  jurisdiction  whenever,  by  their  own  con- 
stitution, they  are  competent  to  take  it.  Thus,  the  United  States 
itself  may  sue  in  the  State  courts,  and  often  does  so.  If  this  may 
be  done,  surely,  on  the  principle  that  the  greater  includes  the  less, 
"~an  officer  or  corporation  created  by  United  States  authority  may 
l->o  oy]r)Klprl  +r>  giif^  inl^i^'li  I'Miirlg"  Nothiug  Ju  the  i^'onstifutionj 
^airlv  considered,  forbids  it. 

The  general  question,  whether  State  courts  can  exercise  con- 
current jurisdiction  with  the  Federal  courts  in  cases  arising  under 
the  Constitution,  laws,  and  treaties  of  the  United  States,  has  been 
elaborately  discussed,  both  on  the  bench  and  in  published  trea- 
tises, —  sometimes  with  a  leaning  in  one  direction  and  sometimes 
in  the  other,  —  but  the  result  of  these  discussions  has,  in  our 
judgment,  been,"as^seen  in  the  above  cases,  to  affirm  the  jurisdic- 
tion.  where  it  is  not  excluded  bv  .pyp^'^'^^  provision,  orT)v  incom~ 
patibility  in  its  exercise  arising  from  the  nature  of  theparticular 
case. 

When  we  consider  the  structure  and  true  relations  of  the  Federal 
and  State  governments,  there  is  really  no  just  foundation  for 
excluding  the  State  courts  from  all  such  jurisdiction. 

The  laws  of  the  United  States  are  laws  in  the  several  States, 
and  just  as  much  binding  on  the  citizens  and  courts  thereof  as 
the  State  laws  are.     TlieJJmted^ta^s  isjio^  sovereignty 

as  regards  the  several  States,  but  is  a  concurrent,  and,  within  its 
jurisdiction,  paramount  sovereignty.  Every  citizen  of  a  State 
IS  a  subject  ot  two  distinct  sovereignties,  having  concurrent  juris- 
diction in  the  State,  —  concurrent  as  to  place  and  DersonSj_jthough 
jistinct  as  tosubiect-matter.     Legal  or  equitable  rights,  acquired"^ 


under  either  system  ot  laws,^may  be  enforced  in  any  court  of  either 
sovereignty  competent  to  hear  and  determine  such  kinds  of  right 
and  not  restrained  by  its  constitution  in  the  exercise  of  such  juris- 
diction. Thus,  a  legal  or  equitable  right  acquired  under  State  laws, 
may  be  prosecuted  in  the  State  courts,  and  also,  if  the  parties 
reside  in  different  States,  in  the  Federal  courts.  So  rights,  whether 
legal  or  equitable,  acquired  under  the  laws  of  the  United  States, 
may  be  prosecuted  in  the  United  States  courts,  or  in  the  State 
courts,  competent  to  decide  rights  of  the  like  character  and  class; 


CLAFLIN   V.    HOUSEMAN.  157 

subject,  however,  to  this  qualification,  that  where  a  right  arises 

Under  a  law  of  the  United  States^  Congress  may,  if  it  see  fit,  give 
to  the  Federal  courts  exclusive  jurisdiction.     See  remarks  of  Mr. 

'  JusticelField,  in  The  ^Moses  Taylor,  4  Wall.  429,  and  Story,  J.,  in 
Martin  v.  Hunter's  Lessee,  1  Wheat.  334;  and  of  Mr.  Justice 
Swayne,  in  Ex  parte  McNeil,  13  Wall.  236.  This  jurisdiction  is 
sometimes_exclusivfi_by_£xpxesa_  enactment  -and  sometimes  by 

Implication.  If  an  act  of  Congress  gives  a  penalty  to  a  party 
aggrieved,  without  specifying  a  remedy  for  its  enforcement,  there 
is  no  reason  why  it  should  not  be  enforced,  if  not  provided  other- 
wise by  some  act  of  Congress,  by  a  proper  action  in  a  State  court. 
The  fact  that  a  State  court  derives  its  existence  and  functions 
from  the  State  laws  is  no  reason  why  it  should  nrTE  nttnrd  reiieij^ 

"Ijecause  [\,  is  p^fhjoct  nisn  to  the  law  r>f  ^hri  T'riiU)d  SlattiL,  aiid"is^ 
just  as  much  bound  to  recognize  those  as  operative  within  the  fttate — 
as  it  is  to  recognize  the  State  laws.  The  two  together  form  one 
system  of  jurisprudence,  which  constitutes  the  law  of  the  land  for 
the  State;  and  the  courts  of  the  two  jurisdictions  are  not  foreign 
to  each  other,  nor  to  be  treated  by  each  other  as  such,  but  as  courts 
of  the  same  country,  having  jurisdiction  partly  different  and 
I)artly  concurrent.  The  disposition  to  regard  the  laws  of  the 
United  States  as  emanating  from  a  foreign  jurisdiction  is  founded 
on  erroneous  views  of  the  nature  and  relations  of  the  State  and 
Federal  governments.  It  is  often  the  cause  or  the  consequence 
of  an  unjustifiable  jealousy  of  the  United  States  government, 
which  has  been  the  occasion  of  disastrous  evils  to  the  country. 

It  ig_lrue,  the  sovereignties  are  distinct,  and  neither  can  inter- 
fere  with  the  proper  jurisdiction  of  the  other,  as  w^as  so  clearly 

"shown  byT'hipf  .bi-kiiin  '"l^ncy,  in  the  case  of  A])leman  y,  "Rnnth, 
21  How.  506;  and  hence  the  State  courts  have  no  power  to  revise 
the  action  of  the  Federal  courts,  nor  the  Federal  the  State,  except 
where  the  Federal  Constitution  or  laws  are  involved.  But  this 
is  no  reason  why  the  State  courts  should  not  be  open  for  the  prose- 
cution  of  rights  growing  out  of  the  laws  of  the  United  States,  to 
which  their  jurisdiction  is  competent,  and  not  dcniccL  .  .  . 

We  hold  that  the  assignee  in  bankruptcy,  under  the  Bankrupt 
Act  of  ISbTTHij  il  bluud  befoie  the  rovlsiuu,  had  authuiilv  lD~bring 
a  suit  in  the  State  courts,  wherever  those  courts  were  invested  with 


appropriate  jurisdiction,  suited  to  the  nature  of  the  case. 

Judgment  affirmed. 


158  FEDERAL    GOVERNMENT. 

In  re  NEAGLE,  Petitioner. 

Supreme  Court  of  the  United  States.     1890. 

[135  United  States,  1.]^ 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Cahfornia,  which  court,  on  habeas  corpus,  had 
discharged  Neagle  from  the  custody  of  the  sheriff  of  San  Joaquin 
County,  Cahfornia. 

Neagle  was  an  acting  deputy  United  States  Marshal  and,  by 
reason  of  instructions  received  from  the  Attorney  General  of  the 
United  States,  was  detailed  by  the  Marshal  to  protect  against  vio- 
lence Mr.  Justice  Field,  of  the  Supreme  Court  of  the  United 
States,  while  performing,  or  on  his  way  to  perform,  his  duties  as  a 
Circuit  Judge  within  California.  Mr.  Justice  Field,  while  travel- 
ing to  the  place  of  holding  court,  was  ifiurderously  attacked,  be- 
cause of  discharge  of  his  judicial  duty  in  a  proceeding  to  which  the 
assailant  had  been  a  party.  Neagle  interposed,  and  shot  the 
assailant. 

Under  a  warrent  issued  by  a  justice  of  the  peace,  Neagle  was 
arrested  for  murder.  He  was  committed  to  the  custody  of  the 
sheriff.  On  habeas  corpus  he  was  discharged  by  the  Circuit  Court 
of  the  United  States,  proceeding  under  a  statute  (U.  S.  R.  S.  sec. 
753)  which  provided  that  "  The  vn:it  of  habeas  corpus  shallinn 
case^extend  to  a  prisoner  in  iail.  unless  where  he  .  .  ..is  m  custody! 
for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the  United 


States,  or  of  an  order,  process,  or  decree  of_axi:Ujrt  orjudge  thereoj 
^or  is  in  custody  in  violation  of  tiie  Constitution^  or  of  a  law  or 
treaty  oflne  united  States."     Thereupon,  in  accordance  with  the 
statute  (U.S.  ii.  E;).  sec.  764,' as  amended  by  the  act  of  Mar.  3,  1885), 
an  appeal  was  taken  by  the  sheriff. 

Z.  Montgomery  and  others,  for  the  appellant;  and  W.  H.  H. 
Miller,  Attorney  General,  and  others,  contra. 

Miller,  J.,  .  .  .  dehvered  the  opinion  of  the  court.  .  .  . 

Without  a  more  minute  discussion  of  this  testimony,  it  produces 
upon  us  the  conviction  of  a  settled  purpose  on  the  part  of  Terry  and 
his  wife,  amounting  to  a  conspiracy,  to  murder  Justice  Field.  And 
we  are  quite  sure  that  if  Neagle  had  been  merely  a  brother  or  a 
friend  of  Judge  Field,  traveling  with  him,  and  aware  of  all  the 
I  previous  relations  of  Terry  to  the  Judge,  —  as  he  was,  —  of  his 

^  The  statement  has  not  been  reprinted.  —  Ed. 


In  re  neagle,  petitioner. 


159 


bitter  animosity,  his  declared  purpose  to  have  revenge  even  to  the 
point  of  killing  him,  he  would  have  been  justified  in  what  he  did  in 

^^dpfenre  nf  Afr,  Tn.fino  Field's  life,  and  possibly  of  his  owti. 

^  But  such  a  justification  would  be  a  proper  subject  for  considera- 
tionon  a  trial  of  the  case  for  murder  in  tlTTcourts  of  the  State  of  | 
^.gjJ!gI^^L§IlilherejSs^n^^  in  the  courts  of  the  United 

States  to  discharge  thejprisonefwFile  held  in  custody  by  the"State 
^authorities  for  this  ofTpji££^_mniiilhere  be  found  in  aid  of  the  d^- 
fence  of  the  prisoner  some  element  of  power  and  authority  asserted^ 
~~lJf^jgL:^he_goveminent_Qi  Jiie-Llnit      States. 

This  element  is  said  to  be  found  in  the  facts  that  Mr.  Justice 
Field,  when  attacked,  was  in  the  immediate  discharge  of  his  duty 
as  judge  of  the  Circuit  Courts  of  the  United  States  \A-ithin  Cali- 
fornia; that  the  assault  upon  him  grew  out  of  the  animosity  of 
Terry  and  wife,  arising  out  of  the  previous  discharge  of  his  duty  as 
circuit  justice  in  the  case  for  which  they  were  committed  for  con- 
tempt of  court;  andthat  the  deputy  marshal  of  the  United  States,  _ 
who  killed  TerrylH^fence  ofneTd's"iire";^^^charrged  with  a  duty 
under  the  law  of  the  United  States  to  protect  Field  from  the  vio- 
Tence  wiiicn  Acrry  wa^  inflicting,  and  which  was  intended  to  lead 
to  Field's  death.  .  .  . 

it  IS  urg^l,  however,  that  there  exists  no  statute  authorizing  any 
such  protection  as  that  which  Neagle  was  msirueted  to  give'Ju(Tge~ 
^i^l^J  in  the  present  case,  and  indeed  no  protection  whatever  against  ' 
a  vindictive  or  malicious  assault  growing  out  of  the  faithful  dis- 
charge of  his  oflScial  duties;  and  that  the  language  of  section  753 
of  the  Revised  Statutes,  that  the  party  seeking  the  benefit  of  the 
WTit  of  habeas  corpus  must  in  this  connection  show  that  he  is  "  in 
custody  for  an  act  done  or  omitted  in  pursuance  of  a  law  of  the 
_United  States,"  makes  it  necessary  that  upon  this  occasion  it  should 
he  shown  that  theactl'or  whicn  JN  eagle  is  impr-TsoiIF?nr^done  by 
^virtue  of  an  act  of  Congress.  It  is  not  supposed  that  any  special 
act  of  Congress  exists  which  authorizes  the  marshals  or  deputy 
marshals  of  the  United  States  in  express  terms  to  accompany  the 
judges  of  the  Supreme  Court  through  their  circuits,  and  act  as  a 
body-guard  to  them,  to  defend  them  against  malicious  assaults 
against  their  persons.  JButwe.ai:ej2fjjpinionJh  view  of  the 

_statute  is  an  unwarranted  restriction  of  the  meaning  of  a  law  de- 
iigneg  to  extend  in  a  liberal  manner  the  benefit  of  the  writ  of  habeas" 
corpus  to  persons  imprisoned  for  the  performance  of  their  duty. 
"Xnd  we  are  satisfied  that  if  it  was  the  duty  of  Neagle,  under  the' 
circumstances,  a  duty  which  could  only  arise  under  the  laws  of  the 


160  FEDERAL  GOVERNMENT. 

United  States,  to  defend  Mr.  Justice  Field  from  a  murderous  attack 
upon  him,  he  brings  himself  within  the  meaning  of  the  section  we 
have  recited.     This  view  of  the  subject  is  confirmed  by  the  alter-^ 
native  provisionTFEp^  ^^  ^llf^^  be  in  custody  "  tor  an  act  done^oT 
omitted^in  pursuap^^  "f  ^  ^«^  ^f  the  United  States  or  of  an  order, 
■process,  or  decree  of  a  court  or  judge  thereof,  or  is  in  custody  in 
violatJOTi  nf  thp  Cnn^titn^^ior.  i^of  a  law  or  treaty  of  theJUnited_ 
States." 

Tn'thirview  we  take  of  the  Constitution  of  the  United  States, 
any  obligation  fairly  and  properly  inferrible  from  that  instrument, 
or  any  duty  of  the  marshal  to  be  derived  from  the  general  scope  of 
his  duties  under  the  laws  of  the  United  States,  is  "  a  law  "  within 
the  meaning  of  this  phrase.  It  would  be  a  great  reproach  to  the 
system  of  government  of  the  United  States,  declared  to  be  within 
its  sphere  sovereign  and  gnprpmp,  if_^Viprp  is  t,n  be  found  within  the.. 
domain  of  its  powers  no  means  of  protecting  the  judges,  in  the  con- 
"  scientTouTT  aud  fuilhtul  dioeliarge  oi  tneir  duties,  from  the  malice 
^nd^  hatred  of  those  upon  wnom  their  ^ludgments  may  operate 
unfavorably.  ...        , 

Where,  tlien,  are  we  to  look  for  the  protection  which  we  have 
showm  Judge  Field  was  entitled  to  when  engaged  in  the  discharge 
of  his  official  duties  ?  Not  to  the  courts  of  the  United  States; 
because,  as  has  been  more  than  once  said  in  this  court,  in  the  divi- 
sion of  the  powers  of  government  between  the  three  great  depart- 
ments,  executive,  legislative  and  judicial,  the  judiciaFisthe  weakest. 
for  the  purposes  oi  sell-protection  and  tor  tne  "enforcement  ofjhe 
j)owers  which  it  exercises.  The  ministerial  officers  through  whom 
its  commands  must  be  executed  are  marshals  of  the  United  States, 
and  belong  emphatically  to  the  executive  department  of  the  gov- 
ernment. They  are  appointed  by  the  President,  with  the  advice 
and  consent  of  the  Senate.  They  are  removable  from  office  at  his 
pleasure.  They  are  subjected  by  act  of  Congress  to  the  super- 
vision and  control  of  the  Department  of  Justice,  in  the  hands  of 
one  of  the  cabinet  officers  of  the  President,  and  their  compensation 
is  provided  by  acts  of  Congress.  The  same  may  be  said  of  the 
district  attorneys  of  the  United  States,  who  prosecute  and  defend 
the  claims  of  the  government  in  the  courts. 

The  legislative  branch  of  the  government  can  only  protect  the 
judicial  officers  by  the  enactment  of  laws  for  that  purpose,  and  the 
argument  we  are  now  combating  assumes  that  no  such  law  has 
been  passed  by  Congress. 


In  re  neagle,  petitioner.  161 

If  we  turn  to  the  executive  department  of  the  government,  we 
find  a  very  different  condition  of  affairs.  The  Constitution,  section 
3,  Article  2,  declares  that  the  President,  "  shall  take  care  that  the 
laws  be  faithfully  executed/'  and  he  is  provided  with  the  means  of 
fulfilling  this  obligation  by  his  authority  to  commission  all  the 
officers  of  the  United  States,  and,  by  and  with  the  advice  and  con- 
_  sent  of  the  Senate,  to  appoint  the  most  important  of  them  and  to 
fill  vacancies.  HeJs_^c]nTPfljT>  be  commandpr-in-chief  of  the 
army  and  nayy^  of  thp  TTnitpH  Stntf^g  The  duties  which  are  thus 
imposed  upon  him  he  is  further  enabled  to  perform  by  the  reco^in^ 
tion  in  the^onstitutinn,  nnr]  tViP  prpnt.inn  by  acts  of  Congress,  of 
executive  departmpnts,  lyhi^-li  bnvp  varied  in  number  from  four  or 
"^vetoseven  or  eight,  the  heads  of  which  are  familiarly  called  cabi- 
net ministers.  These  aid  him  in  the  performance  of  the  great 
TTuties  of  his  office,  and  represent  him  in  a  thousand  acts  to  which 
it  can  hardly  be  supposed  his  personal  attention  is  called,  and  thus 
he  is  enabled  to  fulfil  the  duty  of  his  great  department,  expressed 
in  the  phrase  that  "  be  shall  take  care  that  the  laws  be  faithfullv 
executed." 

is  this  duty  limited  to  the  enforcement  of  acts  of  Congress  or  of 
treaties  of  the  United  States  according  to  their  express  terms,  or 
does  it  include  the  rights,  duties  and  obligations  growing  out  of  the 
Constitution  itself,  our  international  rplntion.^j  and  all  thp  protec- 
tion  imphed  by  the  nature  of  the  government  under  the  Constitu- 
"^  tion  ?  T  .  . 

We  cannot  doubt  the  power  of  the  President  to  take  measures 
for  the  protection  of  a  judge  of  one  of  the  courts  of  the  United" 
States,  who,  while  in  the  discharge  of  the  duties  of  his  office,  is 
threatened  with  a  personal  attack  which  mav  probably  result  in  his 
death,  and  we  think  it  clear  that  wlu-rc  this  protection  is  to  bp 
attorcted  through  the  civilpowerj  the  Department  of  .Tnstifp  is  thp 
proper  one  to  set  m  motionthe  necessary  means  of  protection.  .  .  . 

liut  there  is  positive  law  investing  the  marshals  and  their  depu- 
ties with  powers  which  not  only  justify  what  Marshal  Neagle  did 
in  this  matter,  but  which  imposed  it  upon  him  as  a  duty.  In  chap- 
ter fourteen  of  the  Revised  Statutes  of  the  United  States,  which  is 
devoted  to  the  appointment  and  duties  of  the  district  attorneys, 
marshals,  and  clerks  of  the  courts  of  the  United  States,  section  788 
declares : 

"  The  marshals  and  their  deputies  shall  have,  in  each  State,  the 
same  powers,  in  executing  the  laws  of  the  United  States,  as  the 


162  FEDERAL   GOVERNMENT. 

sheriffs  and  their  deputies  in  such  State  may  have,  by  law,  in  exe- 
cuting the  laws  thereof." 

If,  therefore,  a  sheriff  of  the  State  of  California  was  authorized 
to  do  ipTregar^to  the  laws  of  California  what  Neagle  did,  that  is, 
Hf  he  was  authorized  to  keep  the  peace,  to  protect  a  judge  trom^ 
assault  and  murder,  then  1^  eagle  was  authorized  to  do  the  same 
rthing  m  reference  to  the  laws  of  the  United  States. 

Section  4176  of  the  PoUtical  Code  of  CaUfornia  reads  as  follows: 

"  The  sheriff  must: 

"  First.     Preserve  the  peace. 

"  Second.  Arrest  and  take  before  the  nearest  magistrate  for 
examination  all  persons  who  attempt  to  commit  or  have  committed 
a  public  offence. 

"  Third.  Prevent  and  suppress  all  affrays,  breaches  of  the 
peace,  riots  and  insurrections,  which  may  come  to  his  knowl- 
edge. .  .  ." 

And  the  Penal  Code  of  California  declares  (section  197)  that 
homicide  is  justifiable  when  committed  by  any  person  "  when  re- 
sistipp;  «Tiy  qttPTnpt  t^  Tr.iirrlo]-  ^ny  persou  or  to  commit  a  felony  or 
"to  dolome  great  bodily  injury  upon  any  person;  "  or  ''  when  com- 
mitted in  defence  of  habitation,  property  or  person  against  one 
wEo_manifestly  intends  or  endeavors  by  violence  or  surprise-to— 

commitaJelon^iZl— ' 

That  there  is  a  peace  of  the  United  States;  that  a  man  assaulting 

a  Judge  of  the  United  States  while  in  the  discharge  of  his  duties 

violates  that  peace;   that  in  such  case  the  marshal  of  the  United 

States  stands  in  the  same  relation  to  the  ppn.re  of  t^p  TTnitpr]  S^iai^s 

"which  the  sheriff  ofTEe^county  does  to  tlie  peace  nf  thp  Stat.p.  of 

California;    are  questions  too  clear  to  need  argument  to  prove 

them,     i'liat  it  would  be  the  duty  of  a  sheriff,  if  one  had  been  pres- 

~ent  at  this  assault  by  Terry  upon  Judge  Jield,  to  prevent  this 

^breach  of  the  peace,  to  prevent  tins  assault,  to  prevent  the^urder 


which  was  contemplated  by  it,  cannot  be  doubjted.  ... 

But  all  these  questions  being  conceded,  it  is  urged  against  the 
relief  sought  by  this  writ  of  habeas  corpus,  that  the  question  of  the 
guilt  of  the  prisoner  of  the  crime  of  murder  is  a  question  to  be  de- 
termined by  the  laws  of  California,  and  to  be  decided  by  its  courts, 
and  that  there  exists  no  power  in  the  government  of  the  United 
States  to  take  away  the  prisoner  from  the  custody  of  the  proper 
authorities  of  the  State  of  California  and  carry  him  before  a  judge 
of  the  court  of  the  United  States,  and  release  him  without  a  trial 
by  jury  according  to  the  laws  of  the  State  of  California.     That  the 


In  re  neagle,  petitioner.  163 

statute  of  the  United  States  authorizes  and  directs  such  a  proceed- 
ing and  such  a  judgment  in  a  case  where  the  offence  charged  against 
the  prisoner  consists  in  an  act  done  in  pursuance  of  a  law  of  the 
United  States  and  by  virtue  of  its  authority,  and  where  the  im- 
prisonment of  the  party  is  in  violation  of  the  Constitution  and 
laws  of  the  United  States,  is  clear  by  its  express  language. 

The  enactments  now  found  in  the  Revised  Statutes  of  the  United 
States  on  the'subjoct  oi  the_writ  of  habeasi  eoi'pm  are  th(^  result  of  a 
long  course  of  legislationforced  upon  Congress  by  the  attempt  of 
the_States  of  the  Union  to  exercise  the  power  of  imprisonment  over 
officers  and  other  persons  asserting  rights  under  the  federal  govern- 
ment or  foreign  governments,  which  the  States  denied.,,.  ,  . 

It  would  seem  as  if  the  argument  might  close  here.  If  the  duty 
of  the  United  States  to  protect  its  officers  from  violence,  even  to 
death,  in  discharge  of  the  duties  which  its  laws  impose  upon  them, 
be  established,  and  Congress  has  made  the  writ  of  habeas  corpus 
one  of  the  means  by  which  this  protection  is  made  efficient,  and  if 
.  the  facts  of  this  case  show  that  the  prisoner  was  acting  both  under 
the  authority  of  law,  and  the  directions  of  his  superior  officers 
of  the  Department  of  Justice,  we  can  see  no  reason  why  this  writ 
should  not  be  made  to  serve  its  purpose  in  the  present  case.  .  .  . 

We  have  thus  given,  in  this  case,  a  most  attentive  consideration 
to  all  the  quesfTons  of  law  and  fact  which  we  have  thought  to  be 
properly  involved  inTT  w  c  iiave  tclt  it  to  be  our  duty  to  examine  " 
into  the  facts  ^\^th  a  completeness  justihed  bv  the  importance  of 
"The  case,  as  well  as  from  the  duty  imposed  upon  us  by  the  statute, 
which  we  think  requires  of  us  to  place  ourselves,  as  far  as  possible, 
in  the  place  of  the  Circuit  Court  and  to  examine  the  testimony  and 
the  arguments  in  it,  and  to  dispose  of  the  party  as  law  and  justice 
require. 

The  result  at  which  we  have  arrived  upon  this  examination  is, 
that  in  the  protection  of  the  person  and  the  life  of  Mr.  Justice  Fields 
while  in  the  discharge  of  his  official  duties,  Neagle  was  authorized^ 
to  resist  the  attack  ot  Terry  upon  him;  that  Neagle  was  cnrrppf  I'n- 
^e  beUef  thatwithout  prompt  action^  on  his  part  the  assault  of 
JTerry  upon  the  judge  would  have  ended_in  the  death  of  the  kiler:- 
that^such  being  bis~u^ell-founded  behef,  he  was  justified  in  taking 
the  life  ot  1  erry,  as  the  only  means  of  preventing  the  death  of  the 
__man  who  was  intended  to  be  his  victim;  that  in  taking  the  fife  of 
JTerry,  under  the  circumstances,  he  was  acting  under  the  authority 
of  the  law  of  the  United  States,  and  was  justified  in  so  doing;  and 


164  FEDERAL   GOVERNMENT. 

that  he  is  not  liable  to  answer  in  the  courts  of  California  on  account 
of  his  part  in  that  transaction. 

We  therefore  affirm  the  judgment  of  the  Circuit  Court  authorizing 
his  discharge  from  the  custody  of  the  sheriff  of  San  Joaquin 
County. 
Lamar,  J.  (with  whom  concurred  Fuller,  C.  J.),  dissenting.  .  . . 


SNYDER  V.  BETTMAN. 
Supreme  Court  of  the  United  States.     1903. 

[190  United  States,  249.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  Ohio. 

This  was  an  action  brm]p;ht  by  the  executor  of  David  L.  Snyder 
against  the  collector  of  internal  revenue  to  recover  $22,000,  suc- 
cession tax  upon  a  legacy  of  $220,000,  bequeathed  to  the  city  of 
Springfield^  Ohio,  in  trust  to  expend  the  income  m  the  Hiainlc- 
nance.  improvement,  andbcautifying  ot'  a  public  park  ofthe  city, 
known  as  Sn;y^der  Park,  including  any  extension  thereof  wlncET 
snirl  city  mif;-ht  acquire.  Such  tax  having  been  paid  under  pro- 
test,  this  action  was  brought  to  secure  a  refunding  of  the  same. 

A  demurrer  to  the  petition  having  been  sustained  by  the  Cir- 
cuit Court,  and  final  judgment  entered,  the  case  was  brought  here 
by  writ  of  error. 

J.  E.  Bowman,  for  plaintiff  in  error;  and  Beck,  Assistant  Attor- 
ney General,  contra. 

Brown,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

This  case  involves  the  single  question  whether  it  is  within  the 
power  of  the  Federal  government,  and  within  the  spirit  of  the  act 
of  Congress  of  June  13,  1898,  30  Stat.  448,  as  amended  Mamh  2. 
1901,  31  Stat.  946,  to  impose  a  succession  tax  upon  a  bequest  to  a 
municipal  corporation  of  a  State  for  a  corporate  and  public  purppise. 

The  case  is  to  a  certain  extent  the  converse  of  those  of  the  United 
States  V.  Perkins,  163  U.  S.  625,  and  Plummer  v.  Coler,  178  U.  S. 
115.     In  the  first  of  these  we  held  it  to  be  within  the  competency 


SXYDER   v.    BETTMAN.  165 

of  the  State  of  New  York  to  impose  a  similar  tax  upon  a  bequest, 
to  the  Federal  government,  iacidentallv  rlerirling  (l)  that  the  in- 
heritance tax  of  the  State  was  "  in  reality  a  limitation  upon  the 
power  ot  a  testator  to  bequeatli  his  property  to  whom  he  pleases: 
_a  declaration  that,  in  theexercise  of  that  power,  be  shall  contribut^_ 
a  certam  percentaa^e  for  the  public  use:  "  and(2)  that  the  tax  was 
not  a  tax  upon  the^operty  itself,  but  "SpBFTTs  transmission  b^ 
will  or  descent.     IJTTOmmer  v.  Coler  we  held  the  inr.ir]p,.f.1  f..f 
Jha^he  property  bequeathed  is  composed  in  whole  or  in  part  of 
^FedemTiFcurities,  did  not  invalidate  the  state  tax  or  the  law  under 
whicn  It  Avashnposed,  although  it  was  accepted  as  undeniable  that 
the  State  could  not   in  the  exercise  of  the  power  of  taxation,  tax 
^obhgauons  oi  the  Lmtcd  IStates,  and,  correctively,  that  bonds 
issilecl  by  a  State,  or  under  its  authority  by  its  municinal  bodies 

were  not  taxable  by  the  United  StatesT ~" 

It  is  insisted,  however,  that  the  case  under  consideration  is  dis- 
tinguished  from  those  above  cited  in  the  fact  that  tho  inheritance 
tax  of  New  York  was  but  a  condition  annexed  to  the  power  of  a 
testator  to  dispose^fTTs  pronertv  in-  will,  nnd  that  such  power.  ' 
being  purely  statutory,  the  State  has  the  rld^to  annex  such' 
conaitions  to  it  as  it  pleases.  The  case,  thpn  rp.lK.  ...r.Ur..  Uo..if- 
jnto  the  quPStion  whether  the  authority  to  lay  a  succession  tax 
arises  solely  from  the  power  to  regulate  the  descent  of  property, 
or,  as  well  trom  the^nidependent  general  power  to  tax,  or,  as"ex- 
pressed  in  the  ConstiuTtion.  art  I.  sec.  S  -  in  l.y  nnd  ^^.u^^;^^^^^^^^^^ 
duties,  imposts  and  excises."  The  difficulty  with  this  proposition 
ot  the  plaintiff  is  that  it  proves  too  much.  If  it  be  true  that  the 
right  to  impose  such  taxes  arises  solely  fromThTi^ht  to  regulate 
successions,  then  a  deni;d  of  siu-h  right  goes  to  the  whole  power  of 
the  government  to  impr>se  g  succession  tax,  irrespective  of  the 
(ju^stion  whether  thelegTicy  is  made  to  a  private  individual  or  to' 
an  asenTot  the  State.  nn,i  ihn  ^^.n.  [^  this  court  upholding  the 
power  of  the  Federal  government  to  lay  such  tax  were  wroncrl^ 
decided.  — — a^i.^. 

That  question  was  exhaustively  considered  by  this  court  in 
Knowlton  v.  Moore,  178  U.  S.  41,  in  which  the  constitutionality 
of  this  law  was  attacked  upon  four  grounds:    (1)  That  the  taxes  i 
imposed  were  direct  taxes,  and  not  apportioned  according  to  the  1 

^pulation;    (2)  .if  not  dirert.Jiiey  were  levied  on  rights  created 
solely  by"altate  law,  depending  for  their  continued  existence  on 

^he  consent  of  the  severnl  StntP.-  (31  because  thev  were  not  uni- 
form  throughout  the  United  States;  74 >  thnf  .hp  .o..  ^f  .,^  ,y^- 


* 


166  FEDERAL   GOVERNMENT. 

determined  by  the  aggregate  amount  of  the  personal  estate  of  the 
deceased,  and  not  by  tlie  sum  "of  the  legacies  or  distributive  shares. 
It  was  held,  following  the  cases  of  United  States  v.  Perkins,  163 
U.  S.  625,  and  Magoun  v.  Ilhnois  Trust  &  Savings  Bank,  170  U.  S. 
283,  ^hat  an  inheritance  tax  was  not  one  upon  property  but  upon 
the  succcssiom  The  question  involved  here,  as  to  the  power  of 
Congress  to  levy  a  succession  tax,  was  considered,  and  it  was  said 
by  Mr.  Justice  White  (p.  56) :  "  The  proposition  that  it  cannot 
rests  upon  the  assumption  that,  since  the  transmission  of  property 
by  death  is  exclusively  subject  to  the  regulating  authority  of  the 
several  States,  therefore  the  levy  by  Congress  ol'  a  tax  on  inheri- 
tances or  legacies,  in  anv  form,  is  beyond  the  power  of  Congress, 
and  is  an  interference  by  the  national  government  with  a  matter 
which  falls  alone  within  the  reach  ot  state  legislation."  This 
proposition  was  pronounced  a  fallacy:  "  In  legal  effect,  then,  the 
proposition  upon  which  the  argument  rests  is  that  wherever  a  right 
is  subject  to  exclusive  regulation,  by  either  the  government  of  the 
United  States  on  the  one  hand  or  the  several  States  on  the  other, 
the  exercise  of  such  rights  as  regulated  can  alone  be  taxed  by  the 
p^ernment  having-  the  mission  to  regulate.''  In  this  connection 
was  cited  the  power  of  the  States  to  tax  imported  goods  after  they 
had  been  commingled  with  the  general  property  of  the  State,  as 
well  as  vehicles  engaged  in  interstate  commerce. 

Continuing,  it  was  further  said  (p.  60):  "  It  cannot  be  doubted 
that  the  argument  when  reduced  to  its  essence  demonstrates  its 
own  unsoundness,  since  it  leads  to  the  necessary  conclusion  that 
both  the  national  and  state  governments  are  divested  of  those 
powers  of  taxation  which  from  the  foundation  of  the  government 
admittedly  have  belonged  to  them.  .  .  .  Under  oyr  constitn- 
tional  system  both  the  national  and  the  state  governments, 
"moving  in  their  respective  orbits,  have  a  common  autliority~fo 
tax  many  and  diverse  objects,  but  this  does  not  cause  the  exercise 
of  its  lawful  attributes  by  one  to  be  a  curtailment  of  the  powgra 
of  government  of  the  other,  for  if  it  did  there  would  practically  / 
be  an  end  of^ttm  dual  system  of  government  which  the  Constitu-  / 
tion  estabhshed." 

This  case  must  be  regarded  as  definitely  establishing  the  doc- 
trine that  the  powef  to  tax  inheritances  does  not  arise  solely  from 
the  power  to  regulate  the  descent  of  property,  but  from  the  general 
authority  to  impose  taxes  upon  all  property  wnthin  the  jurisdic- 
tion of  the  taxing  power.  It  has  usually  happened  that  the  power 
has  been  exercised  by  the  same  government  which  regulates  the 


SNYDER   V.    BETTMAN.  167 

succession  to  the  property  taxed;  but  this  power  is  not  destroyed 
by  the  dual  character  of  our  government,  or  by  the  fact  that  under 
our  Constitution  the  devolution  of  property  is  determined  by  the 
laws  of  the  several  States. 

The  principles  laid  down  in  Knowlton  v.  Moore  were  reiterated 
in  JMurdock  v.  Ward,  178  U.  S.  139,  although  the  case  was  decided 
upon  the  authority  of  Plummer  v.  Coler. 

If  it  be  true  that  it  is  beyond  the  power  of  Conp;ress  to  impose^ 
an  inheritance  tax  because  the  descent  of  property  is  regulated  by 
state  statutes,  it  would  be  difficult  to  support  its  power  to  impose 


stamp  taxes  upon  commercial  and  legal  instruments,  since  the  con- 
veyance, regulation  and  transmission  of  all  property  is  governed  by 
the  laws  of  the  sey^'n*  i^tntr-s:  Particularly  would  this  be  so  with 
reference  to  stamp  duties  imposed  upon  documents  coimected  ^\^th 
the  devolution  of  the  property  of  a  deceased  person.  And,  yet, 
as  stated  in  Knowlton  v.  Moore,  Congress,  as  early  as  1797,  im- 
posed a  stamp  duty,  not  only  upon  receipts  or  other  discharges  for 
or  on  account  of  any  legacy,  or  for  a  share  of  personal  estate  divided 
under  the  statute  of  distributions,  proportioned  to  the  amount  of 
the  legacy  or  such  distributive  share,  but  in  the  internal  revenue 
act  of  1862,  12  Stat.  432,  483,  a  tax  was  imposed  upon  the  probate 
of  wills  and  letters  of  administration,  proportioned  to  the  value 
of  the  estate.  Not  only  this,  but  the  same  statute  imposed  a  tax 
upon  writs,  or  other  original  process,  by  which  suits  are  commenced 
in  any  court  of  record,  exempting  only  processes  issued  by  justices 
of  the  peace,  or  in  suits  begun  by  the  United  States,  or  any  State. 
This  act  was  treated  as  applicable  to  the  state  courts,  although  its 
constitutionality  may  well  be  doubted. 

Referable  to  the  same  principle  is  the  power  of  Congress  to  tax 
occupations  which  can  only  be  carried  on  by  permission  ot"  the 
state  authorities  and  under  conditions  prescribed  by  its  laws  — 

• — ——————     — — — ^ ■         ■  — — — ^ 

such,  for  instance,  as  the  profession  of  a  lawyer  or  physician  or 
the_h]ij^inpss  of  dealing  ip  spiritiuMis  liquors,  tor  which  licenses  are^ 
rpqiiirod  niKJcr  the  laws  of  nearh^  all  the  States.  While  the  power 
of  Congress  to  impose  such  taxes  may  never  have  been  expressly 
affirmed  by  this  court,  it  does  not  seem  to  have  been  seriously 
questioned,  and  is  a  legitimate  inference  from  McGuire  v.  The 
Commonwealth,  3  Wall.  387;  The  License  Tax  Cases,  5  Wall.  462; 
Pervear  v.  The  Commonwealth,  5  Wall.  475;  and  Royall  v.  Virginia, 
116  U.  S.  572,  580.  See  also  Ould  v.  City  of  Richmond,  23  Gratt. 
464;  Humphreys  v.  Citv  of  Norfolk,  25  Gratt.  97. 


168  FEDERAL   GOVERNMENT. 

Conceding  fully  that  Congress  has  no  power  to  impose  a  burden_ 
upon  a  State  or  its  municipal  corporations,  the  question  in  each 
case  is  whether  the  tax  is  direct  or  incidental;  since  we  have  had 
trcquent  occasion  to  hold  that  the  imposition  of  a  tax  may  indi- 
rcctly  affect  the  value  of  property  to  the  amount  of  the  tax  without 
"being  legally  objectionable  as  a  direct  burden  upon  such  property. 
Thus  in  Van  Allen  v.  The  Assessors,  3  Wall.  573,  we  held  it  to  be 
within  the  power  of  the  States  to  t^nv  tVip  «>inres_o£nationai  banks," 
though  a  part  or  the  whole  of  the  capital  of  such  bank  were  in- 
vested  in  national  securities  exempt  from  taxation,  upon  the  ground 
tha^  the  taxation  of  the  shares  was  not  a  taxation  of  the  capital. 
So  a  tax  upon  deposits  was  upheld,  though  such  deposits  were  in- 
vested in  United  States  securities.^  Society  for  Savings  v.  Coite, 
6  Wall.  594;  Provident  Institution  v.  Massachusetts,  6  Wall.  611; 
Hamilton  Co.  v.  Massachusetts,  6  Wall.  632.  The  same  principle 
was  extended  to  a  statute  of  New  York,  imposing  a  tax  upon  cor- 
porations  measured  by  its  dividends,  though  such  dividends  were 
derived  from  interest  upon  government  bonds.  Home  Ins.  Co. 
V.  New  York,  134  U.  S.  594.  As  the  tax  in  the  case  under  con- 
sideration  is  collected  from  the  property  while  in  the  hands  of  the 


executor  (sec.  30),  who  isreqti'lred  to  liquidate  it  "  before  payment 
and  distribution  to  the  legatees,"  we  do  not  regard  it  as  a  tax  upon 
the  municipality,  though  it  may  operate  incidentally  to  reduce  the 
bequest  bv  the  amount  of  the  tax.  ^Such  incidental  effects  are 
common  to  many,  if  not  all,  forms  of  taxation  —  indeed  it  may_be 
^auTgenerallv  that  few  taxes  are  wholly  paid  by  the  person  upon 
whom  tbpy  j^tp.  directly  and  primarily  imposed. 

Having  determined,  then,  that  Congress  has  the  power  to  tax 
successions;  that  the  States  have  the  same  power,  and  that  such 
power  extends  to  bequests  to  the  United  States,  it  would  seem  to 
follow  logically  that  Congress  has  the  same  power  to  tax  the  trans-  j 
mission  ot  property  by  legacy  to  States,  or  their  municipalities,  | 
and  that  the  exercise  of  that  power  in  neither  case  conflicts  with  \ 
the  proposition  that  neither  the  Federal  nor  the  state  government 
can  tax  the  property  or  agencies  of  the  other,  since,  as  repeatedly 
held,  the  taxes  imposed  are  not  upon  property,  but  upon  the  right 
to  succeed  to  property. 

If  the  position  of  the  plaintiff  be  sound,  it  will  come  to  pass  that, 
with  the  same  power  to  tax  the  subject  matter,  i.e.,  the  transmission 
of  the  property,  the  States  are  competent  to  limit  the  amount  of 
bequests  to  the  Federal  government  by  requiring  the  prepayment 
of  a  succession  tax  as  a  nonrlition  prRcpdpnt  to  the  transmission 


SOUTH    CAROLINA    V.    UNITED    STATES.  169 

of  thejDro^ertx,  while  Congress  is  impotent  to  accomplish  the  same 
result  with  respect  to  legacies  to  States  or  their  agents.     We  are 
reluctant  to  admit  the  inferiority  of  Congress  in  that  particular. 
The  judgment  of  the  Circuit  Court  is  therefore, 

Affirmed. 

White,  J.,  with  whom  concur  Fuller,  C.J.,  and  Peckham,  J., 
dissenting.  .  .  . 


SOUTH   CAROLINA  v.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     1905. 

[199  United  States,  437.] ' 

Appeal  from  the  Court  of  Claims. 

South  Carolina  having  established  dispensaries  for  the  sale_of_ 
Uquor  andliaving  prohibited  sale  by  others  than  the  dispensers, 
thM^nit^d  ["^tntf^  rlemimilL-d  and  collected  from  the  dispensers  the 
license  taxes  prescribed  by  the  internal  revenue  iawsl  The_State, 
and  not  the  dispensers,  ha(t  alltheprofit  of  the  business,  thougg^ 
the  !:^tate  chvid(>d  hall  the  profat  ot  each  dispensarv  equaikJ:i&- 
tween  the  municipality  and  the^county^  The  State  brought 
actions  in  the  Court  of  Claims  for  the  recovery  of  the  license 
taxes  paid;  and  upon  judgment  in  behalf  of  the  United  States, 
as  reported  in  39  Court  of  Claims,  257,  this  appeal  was  taken. 

J.  H.  Ralston  and  others,  for  appellant. 

Hoyt,  Sohcitor  General,  for  the  United  States. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  important  question  in  this  case  is,  whether  persons  who  are^ 
selling  liquor  are  relieved  Irom  liability  lor  the  internal  revenue 
tax  by  the  fact  that  they  have  no  interest  in  tne  prohts  ot  the 
K^c^jnt^cg  ^y^rl  nrp  simply  thp  np^cnts  of  a  State  which,  in  the  exercise 
of  its  sovereign  power,  has  taken  charge  of  the  business  of  selling 
intoxicating  liquors^.  .  . 

We  have  in  this  Republic  a  dual  system  of  government.  National^ 
and  State,  each  operating  within  the  same  territory  and  upon  the 

1  The  original  statement  has  not  been  reprinted.  —  Ed. 


170  FEDERAL   GO\TERNMENT. 

same  persons;  and  yet  working  without  collision,  because  their 
functions  are  different.  There  are  certain  matters  over  which  the 
~~Xational  Government  has  absolute  control  and  no  action  of 
the  State  can  interfere  there^nth,  and  there  are  others  in  which  the 
State  is  supreme,  and  in  respect  to  them  the  National  Government 
is  powerless.  To  preserve  the  even  balance  between  these  two 
governments  and  hold  each  in  its  separate  sphere  is  the  peculiar 
dutj'  of  all  courts,  preeminently  of  this  —  a  duty  oftentimes  of 
great  dehcacy  and  difficulty. 

Two  propositions  in  our  constitutional  jurisprudence  are  no 
longer  debatable.  One  is  that  the  National  Government  is  one  of 
enumerated  powers,  and  the  other  that  a  power  enumerated  and_ 
delegated  by  the  Constitution  to  Congress  is  comprehensive  and 
complete,  -v\'ithout  other  limitations  than  those  found  m  the  Gon- 
stitution  itself.  ^  .  . 

But  it  is  undoubtedly  true  that  that  which  is  imphed  is  as  much 
aTpart  oi  Ihe  ConsLituliuu  as  LhaL  uhich  is  expressed.  .  .  . 
'  Among  thogg  matters  whidl_are  implied,  though  not  expressed, 
is  that  the  Nation  may  not,  in  the  exercise  of  its  powers,  prevent  a 
tjtate  from  discharging  tiie  ordinary  functions  of  government,  just 
as  it  follows  from  the  second  clause  of  Article  VI  of  the  Constitu- 


tion, that  no  State  can  interfere  with  the  free  and  unembarrassed 
exerdse  by  the  National  Government  of  all  the  powers  conferred 
upon  it.  .  .  . 

In  other  words,  the  two  governments.  National  and  state,  are 
each  to  exercise  their  power  so  as  not  to  interfere  with  the  free  and 
full  exercise  by  the  other  ot  its  powers.  .  .~ 

Upon  this  proposition  counsel  for  plaintiff  in  error  rely.  There 
being  no  constitutional  limit  as  to  the  amount  of  a  license  tax,  and 
the  power  to  tax  being  the  power  to  destroy,  if  Congress  can  en- 
force such  a  tax  against  a  State  it  may  destroy  this  effort  of  the 
State  in  the  exercise  of  its  pohce  power  to  control  the  sale  of  liquor. 
It  cannot  be  doubted  that  the  regulation  of  the  sale  of  liquor  comes 
•s\-ithin  the  scope  of  the  pohce  power,  and  equally  true  that  the 
police  power  is  in  its  fullest  and  broadest  sense  reserved  to  the 
States ;  that  the  mode  of  exercising  that  power  is  left  to  their  dis- 
cretion, and  is  not  subject  to  National  supervision.  But  if  Con- 
gress  may  tax  the  agents  of  the  State  charged  with  the  duty  of 
selling  intoxicating  liquors,  it  in  effect  assumes  a  certain  control 
over  this  police  power,  and  thus  may  embarrass  and  even  thwart 
the  attempt  of  the  State  to  carrj-  on  this  mode  of  regulation. 


SOUTH    CAROLINA    V.    UNITED    STATES.  171 

We  are  not  insensible  to  the  force  of  this  argument,  and  appre- 
ciate the  difl&culties  which  it  presents,  but  let  us  see  to  what  it 
leads.  Each  State  is  subject  only  to  the  limitations  prescribed 
by  the  Constitution  and  within  its  ovra  territory  is  otherwdse  su- 
preme. Its  internal  affairs  are  matters  of  its  own  discretion.  The 
Constitution  pro\'ides  that  "  the  United  States  shall  guarantee  to 
every  State  in  this  Union  a  repubhcan  form  of  government." 
Art  IV,  sec.  4.  That  expresses  the  full  limit  of  National  control 
over  the  internal  affairs  of  a  State. 

The  right  of  South  Carolina  to  control  the  sale  of  liquor  b}^  the 
dispensary  system  has  been  sustained.  Vance  v.  W.  A.  Vander- 
cook  Co.,  Xo.  1,  170  U.  S.  438.  The  profits  from  the  business  in 
the  year  1901,  as  appears  from  the  findings  of  fact,  were  over  half 
a  miUion  of  dollars.  ^Mingling  t he  thought  of  profit  with  the  neces- 
sitj'  of  regulation  may  induce  the  State  to  take  possession,  in  like 
man^gr.  of  tobacco,  oleomargarme,  and  all  other  objects  of  internal 
revenue  tax.  If  one  State  finds  it  thus  profitable  other  States  may 
follow,  and  the  whole  bod}"  of  internal  revenue  tax  be  thus  stricken 
down. 

More  than  this.  There  is  a  large  and  growing  movement  in 
the  countrv  in  favor  of  the  acquisition  and  management  by  the 


public  of  what  are  termed  public  utilities,  including  not  merely 
therein  the  supply  of  gas  and  water,  but  also  the  entire  railroad 
system.  Would  the  State  b^'  taking  into  possession  these  public 
utihties  lose  its  republican  form  of  p;overnment  ? 

We  may  even  go  a  step  further.  There  are  some  insisting  that 
the  State  shall  become  the  owner  of  all  property  and  the  manager 
of  all  business.  Of  course,  this  is  an  extreme  view,  but  its  advo- 
cates are  earnestly  contending  that  thereby  the  best  interests  of 
all  citizens  vriU  be  subserved.  If  this  change  should  be  made  in 
any  State,  how  much  would  that  State  contribute  to  the  revenue  ~ 
of  the  Nation  ?  If  this  extreme  action  is  not  to  be  counted  among 
the  probabilities,  consider  the  result  of  one  much  less  so.  Suppose 
a  State  assumes  under  its  police  power  the  control  of  all  those  mat- 
ters subject  to  the  internal  revenue  tax  and  also  engages  in  the 
business  of  importing  all  foreign  goods.  The  same  argument 
which  would  exempt  the  sale  by  a  State  of  liquor,  tobacco,  etc., 
fromg.  license  tax  would  exempt  the  importation  of  merchandise 
bv  a  State  from  import  duty.  While  the  State  might  not  prohibit 
importation,  as  it  can  the  sale  of  liquor,  by  pnv«tp  inrin-idnal^ 
yet  paying  no  import  dutv  it  could  undersell  all  individuals  and 
so  monopolize  the  importation  and  sale  of  foreign  goods. 


172  FEDERAL    GOVERNMENT. 

Obviously,  if  the  power  of  the  State  is  carried  to  the  extent 
suggested,  and  with  it  is  rehef  from  all  Federal  taxation,  the 
National  Government  would  be  largely  crippled  in  its  revenues. 
Indeed,  if  all  the  States  should  concur  in  exercising  their  powers 
to  the  full  extent,  it  would  be  almost  impossible  for  the  Nation  to 
collect  any  revenues.  In  other  words,  in  this  indirect  way  Jt 
would  be  within  the  competency  of  the  states  to  practically  destroy 
the  efficiency  ot  the  National  Government,  if  it  be  said  that  the 
btates  can  be  trusted  not  to  resort  to  any  such  extreme  measures, 
because  of  the  resulting  interference  with  the  efficiency  of  the 
National  Government,  we  may  turn  to  the  opinion  of  Mr.  Chief 
Justice  Marshall  in  M'Culloch  v.  Maryland.  .  .  . 

In  other  words,  we  are  to  find  in  the  Constitution  itself  the  full 
protection  to  the  Nation,  and  not  to  rest  its  sufficiencv  on  either 
the  generosity  or  the  neglect  of  anv  State. 

There  is  something  of  a  conflict  between  the  full  power  of  the 
Nation  in  respect  to  taxation  and  the  exemption  of  the  State  from 
Federal  taxation  in  respect  to  its  property  and  a  discharge  of  all 
its  functions.  Where  and  how  shall  the  fine  between  them  be 
drawn  ?  We  have  seen  that  the^full  power  of  collecting  license, 
taxes  is  in  terms  granted  to  the  National  Government  with  only 
the  limitations  of  uniformity  and  the  pubhc  benefit.  Thejgxemp- 
tion  of  the  State's  propertv^and  its  functions  from  Federal  taxation 
is  implied  from  the  dual  character  of  our  i*'ederai  system  and  the 
necessitv  of  preserving  the  State  in  all  its  efficiency.  In  order  to 
determine  to  what  extent  that  implication  will  go  we  must  turn 
to  the  condition  of  things  at  the  time  the  Constitution  was  framed. 
What,  in  the  1if;ht  ftf  th^^  ^^"^^'tinn.  did  the  framers  of  the  conven- 


tion intend  should  be  exempt  ?  Certain  is  it  that  modern  notions 
as  to  the  extent  to  which  the  functions  of  a  State  may  be  carried 
had  then  no  hold.  Whatever  Utopian  theories  may  have  been 
presented  by  any  writers  were  regarded  as  mere  creations  of  fancy, 
and  had  no  practical  recognition.  It  is  tni^  ^^lat  r^Annpnlipg  in 
respect  to  certain  commodities  were  known  to  have  been  granted 
by  absolute  monarchs,  but  they  were  not  regarded  as  consistent 
with  Anglo-Saxon  ideas  of  government!  The  opposition  to  the 
Constitution  came  not  Irom  any  apprehension  of  danger  from  the 
extent  of  power  reserved  to  the  States,  but,  on  the  other  hand, 
entirely  through  fear  of  whfft  mig-ht  result  from  the  exercise  of  the 
powers  granted  to  the  central  government.  While  many  believed 
that  the  liberty  of  the  people  depended  on  the  preservation  of  the 
rights  of  the  States,  they  had  no  thought  that  those  States  would 


SOUTH  CAROLINA  V.    UNITED  STATES.  173 

extend  their  functions  beyond  their  then  recognized  scope,  or  so    1 
as  to  imperil  the  Hfe  of  the  Nation.  .  .  . 


Looking,  therefore,  at  ttie  uonstirution  in  the  Hght  of  the  condi- 
tions surrouncUng  at  the  time  of  its  adoption,  it  is  obvious  that  the 
framers  in  granting  full  power  over  license  taxes  to  the  National 
Government  meant  that  that  power  should  be  complete,  and  never 
thought  that  the  States  by  extending  their  functions  could  practi- 
cally destroy  it. 

If  we  look  upon  the  Constitution  in  the  light  of  the  common  law 
we  are  led  to  the  same  conclusion.  All  the  avenues  of  trade  were 
open  to  the  individual.  The  Government  did  not  attempt  to 
exclude  him  from  any.  Whatever  restraints  were  put  upon  him 
were  mere  police  regulations  to  control  his  conduct  in  the  business 
and  not  to  exclude  him  therefrom.  The  Government  was  no 
competitor,  nor  did  it  assume  to  carry  on  any  business  which  ordi- 
narily is  carried  on  by  individuals.  Indeed,  evcrv  attempt  at 
monopoly  was  odious  in  the  eyes  of  the  common  law,  and  it  mat-_ 
tered  not  how  that  monopoly  arose,  whether  from  grant  of  the, 
sovereign  or  otherwise.  '1  he  Iramers  of  the  Constitution  were  not 
anticipating  that  a  State  would  attempt  to  monopolize  any  busj::. 
ness  heretofore  carried  on  by  individuals. 

Further,  it  may  be  noticed  that  the  tax  is  not  imposed  on  any 
property  belonging  to  the  State,  but  is  a  charge  on  a  business 
before  any  profits  are  realized  therefrom.  In  this  it  is  not  unlike 
the  taxes  sustained  in  United  States  v.  Perkins,  163  U .  S.  625,  and 
Snyder  v.  Bettman,  190  U.  S.  249.  In  the  former  case  a  succession 
tax  of  the  State  of  New  York  was  sustained,  although  the  property 
charged  therewith  was  t)equeathed  by  will  to  the  United  States^ 
the  court  holding  that  the  latter  acquired  no  property  until  after 
the  state  charges  for  transmission  had  been  paid,  saving :_ 

"  '  This,  therefore^  is  not  a  tax  upon  the  property  itself,  but  is 
merely  the  price  exacted  by  the  State  for  the  privilege  accorded 
in  permitting  property  so  situated  to  be  transferred  by  will  or  by 
descent  or  distribution..!.  ^' 

In  Snyder  v.  Bettman,  the  succession  tax  required  by  the  laws 
of  Congress  was  sustained,  although  the  bequest  was  to  the  city 
of  Springfield,  Ohio.  This  is  almost  a  converse  to  the  Perkins 
case.  It  was  held  that  while  the  power  to  regulate  inheritances 
and  testamentary  dispositions  was  one  belonging  to  the  State,  ' 
and  therofr^rp  snl^jppt.  fr^  piuch  conchtions  as  the  iState  might  .see  tit  " 
to  impns;p  (v>^  lipid  in  flip  Porkins  ci\'>^),  yp<-.  t>»p  pnwpy  to  impose 
a  succession  tax  was  vested  in  Congress,  that  it  could  be  exercised 


174  FEDERAL   GOVERNMENT. 

upon  a  bequest  made  to  a  municipality  or  a  State,  and  was  notjto 
be  considered  as  a  tax  upon  the  property  bequeathed,  the  court 
saying: 

— *^^aving  determined,  then,  that  Congress  has  the  power  to  tax 
successions;  that  the  States  have  the  same  power,  and  that  such 
power  extends  to  bequests  to  the  United  States,  it  would  seem  to 
follow  logically  that  Congress  has  the  same  power  to  tax  the 
transmission  of  property  by  legacy  to  States,  or  their  municipali- 
ties, and  that  the  exercise  of  that  power  in  neither  case  conflicts 
with  the  proposition  that  neither  the  Federal  nor  the  state  govern- 
ment can  tax  the  property  or  agencies  of  the  other,  since,  as  re- 
peatedly held,  the  taxes  imposed  are  not  upon  property,  but  upon 
the  right  to  succeed  to  property." 

So  here  the  charge  is_  not  upon  the  propertv  of  the  State,  but 
upon  the  means  by  which  that  property  is  acquired,  and  before  it 
is  acGuired. 

It  is  also  worthy  of  remark  that  the  cases  in  which  the  invalidity 
of  a  Federal  tax  has  been  affirmed  were  those  in  which  the  tax  was 
attempted  to  be  levied  upon  property  belonging  to  the  State,  or 
one  of  its  municipalities,  or  was  a  charge  upon  the  means  and  in- 
strumentalities employed  by  the  State,  in  the  discharge  of  its 
ordinary  functions  as  a  government. 

In  Veazie  Bank  v.  Fenno,  8  Wall.  533,  in  which  a  National  tax 
of  ten  per  cent  on  the  amount  of  notes  of  any  person,  state  bank, 
or  banking  association,  used  for  circulation,  was  sustained,  the 
court  has  stated  the  limits  of  the  power  of  National  taxation  over 
state  agencies  (p.  547) : 

"  It  may  be  admitted  that  the  reserved  rights  of  the  States, 
such  as  the  right  to  pass  laws,  to  give  effect  to  laws  through  execu- 
tive action,  to  administer  justice  through  the  courts,  and  to  employ 
all  necessary  agencies  for  legitimate  purposes  of  state  government, 
are  not  proper  subjects  of  the  taxing  power  of  Congress."  .  .  . 

In  Ambrosini  v.  United  States,  187  U.  S.  1,  in  which  the  Federal 
war  revenue  tax  act,  providing  for  stamp  taxes  on  bonds,  was  held 
inapplicable  to  bonds  required  from  licensees  under  the  dram  shop 
act  of  Illinois,  the  court  declared  (p.  8) : 

"  The  question  is  whether  the  bonds  were  taken  in  the  exercise 
of  a  function  strictly  belonging  to  the  State  and  city  in  their  ordi- 
nary governmental  capacity,  and  we  are  of  the  opinion  that  they 
were,  and  that  they  were  exempted  as  no  more  taxable  than  the 
licenses." 


SOUTH    CAROLINA   V.    UNITED    STATES.  175 

These  decisions,  while  not  controlling  the  question  before  us. 
indicate  that  the  thought  has  been  that  the  exemption  of  state 
agencies  and  instrumentalities  from  National  taxation  is  limited, 
to  those  which  are  of  a  strictly  governmental  character,  and  does 
not  extend  to  those  which  are  used  by  the  ^tate  in  the  carrying  on 
of  an  ordinary  private  business. 

In  this  connection  may  be  noticed  the  well-established  distmc- 
tion  between  the  duties  of  a  public  character  cast  upon  municipal 
corporations  and  those  which  relate  to  what  may  be  considered 
their  private  business,  and  the  different  responsibility  resulting  in 
case  of  negligence  in  respect  to  the  discharge  of  those  duties.  .  .  . 
Now,  if  it  be  well  established,  as  these  authorities  say,  that_ 
there  is  a  clear  distinction  as  respects  responsibihty  for  negjigence, 
between  the  powers  granted  to  a  corporation  for  governmentjL 
nurposesand  those  in  aid  of  private  business,  a  like  distinction 
mnv  bo  recognized  when  we  are  asked  to  limit  the  full  powerj^f 
imposing  excises  grant elTFTrtheNationalGovernment  by  an  implied 
inabihty  to  impede  or  embarrass  a  State  in  the  discharge  oUtr 
functions.     It  is  reasonal>le  to  hold  that  while  the  former  Tuny  di 
II^tln^Tby  taxation  in  any  form  to  prevent  the  full  discharge  by 
"the  latter  of  its  governmental  functions,  yet  whenever  aState_ 
-TnF?I^Fsln  a  business  which  is  ot  a  private  nature  that  busin"esslg 
notjvithdrawn  from  the  taxing  power  of  the  Nation. 

For  these  reasons  we  think  that  the  licence  taxes  charged  by 
the  Federal  Government  upon  persons  selling  liquor  are  not  invali- 
dated by  the  fact  that  they  are  the  agents  of  the  State  which  has 
itself  engaged  in  that  business. 

The  judgment  of  the  Court  of  Claims  is  Affirmed. 

White,  J.,  with  whom  concur  Peckham,  J.,  and  McKenna,  J., 
dissenting.  .  .  . 


176  FEDERAL   GOVERNMENT. 

KANSAS  V.  COLORADO  et  oh,  Defendants,  and  THE  UNITED 
STATES,   Intervener. 

Supreme  Court  of  the  United  States.     1907. 

[206  United  States,  46.]  ^ 

Original 

Kansas  filed  a  bill  in  equity  against  Colorado,  praying  a  decree 
that  Colorado  be  enjoined  from  constructing  or  operating  any 
canal,  ditch,  or  reservoir  whereby  the  waters  of  the  Arkansas 
River  should  be  diverted  for  purposes  of  irrigation  and  also  from 
granting  licenses  for  diverting  the  waters  of  that  river  except 
for  domestic  use. 

The  court  having  decided,  as  reported  in  185  U.  S.  125,  that, 
considering  the  nature  of  the  case,  it  would  be  improper  to  proceed 
on  mere  technical  admissions  made  by  demurrer,  Kansas  filed  an 
amended  bill  against  Colorado  and  various  corporations  charged 
to  be  depleting  the  flow  of  water  in  the  Arkansas  River.  Colo- 
rado and  some  of  the  corporations  answered.  The  United  States 
filed  a  petition  in  intervention. 

The  issues  having  been  perfected  by  replications,  evidence  was 
taken  by  a  commissioner.  The  essential  facts  are  found  in  such 
extracts  from  the  opinion  as  are  here  reprinted. 

C.  C.  Coleman,  Attorney  General  of  Kansas,  and  others,  for 
complainant. 

N.  C.  Miller,  Attorney  General  of  Colorado,  and  others,  for 
Colorado. 

H.  M.  Hoyt,  Solicitor  General  of  the  United  States,  and  others, 
for  the  United  States. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

In  the  Constitution  are  provisions  in  separate  articles  for  the 
three  great  departments  of  government  —  legislative,  executive 
and  judicial.  But  there  is  this  significant  difference  in  the  grants 
of  powers  to  these  departments:  The  first  article,  treating  of 
legislative  powers,  does  not  make  a  general  grant  of  legislative 
power.  It  reads:  "Article  I,  Section  1.  All  legislative  powers 
herein  granted  shall  be  vested  in  a  Congress,"  etc.;  arid  then  in 
Article  VIII  mentions  and  defines  the  legislative  powers  that  are 
granted.     By  reason  of  the  fact  that  there  is  no  general  grant  of 

^  An  abbreviated  statement  has  been  presented.  —  Ed. 


KANSAS   V.    COLORADO.  177 

legislative  power  it  has  become  an  accepted  constitutional  rule 
that  this  is  a  government  of  enumerated  powers.   .   .   . 

Speaking  generalh',  it  may  be  observed  that  the  judicial  power 
of  a  nation  extends  to  all  controversies  justiciable  in  their  nature^ 
the  parties  to  which  or  the  property  involved  in  which  may  be^ 
reached  by  judicial  process,  and  when  the  judicial  power  of  the 
United  ►'States  was  vested"^  the  Supreme  and  other  courts  all  the 
judicial  power  which  the  Nation  was  capable  of  exercising  was, 
~vp^;tofl  HI  fhnt't^  inhiiriMls  nnd  unless  there  be  some  limitations 
expressed  in  the  Constitution  it  must  be  held  to  embrace  all  con- 
troversies  of  a  justiciable  nature  arising  within  the  territorial 
limits  of  the  .Nation,  no  matter  who  may  be  the  parties  thereto.  .  .  . 

These  considerations  lead  to  the  propositions  that  when  a 
legislative  power  is  claimed  for  the  National  Government  the 
question  is  whether  that  power  is  one  of  those  granted  by  the 
Constitution,  either  in  terms  or  by  necessary  implication,  whereas 
in  respect  to  judicial  functions  the  question  is  whether  there  be 
any  limitations  expressed  in  the  Constitution  on  the  general  grant 
of  national  power. 

We  may  also  notice  a  matter  in  respect  thereto  referred  to  at 
length  in  Missouri  v.  Illinois  &  Chicago  District,  180  U.  S.  208, 
220.  The  ninth  article  of  the  Articles  of  Confederation  provided 
that  "  the  United  States  in  Congress  assembled  shall  also  be  the 
last  resort  on  appeal  in  all  disputes  and  differences  now  subsisting 
or  that  hereafter  may  arise  between  two  or  more  States,  concerning 
boundary,  jurisdiction  or  any  other  cause  whatever."  In  the 
early  drafts  of  the  Constitution  provision  was  made  giving  to  the 
Supreme  Court  "  jurisdiction  of  controversies  between  two  or 
more  States,  except  such  as  shall  regard  territory  or  jurisdiction," 
and  also  that  the  Senate  should  have  exclusive  power  to  regulate 
the  manner  of  deciding  the  (Usputes  and  controversies  between  the 
States  respecting  jurisdiction  or  territory.  As  finally  adopted, 
the  Constitution  omits  all  provisions  for  the  Senate  taking  cogniz- 
ance of  disputes  between  the  States  and  leaves  out  the  exception 
referred  to  in  the  jurisdiction  granted  to  the  Supreme  Court. 
That  carries  with  it  a  very  direct  recognition  of  the  fact  that  to  the 
Supreme  Court  ig  granted  jurisdiction  of  all  controversies  between 
the  States  which  are  justiciable  in  their  nature.  "  All  the  States 
have  transferred  the  decision  of  their  controversies  to  this  court; 
each  had  a  right  to  demand  of  it  the  exercise  of  the  power  which 
they  had  made  judicial  by  the  Confederation  of  1781  and  1788; 
that  we  should  do  that  which  neither  States  nor  Congress  could  do, 


178  FEDERAL    GOVERNMENT. 

settle  the  controversies  between  them."  Rhode  Island  v.  Massa- 
chusetts, 12  Pet.  657,  743. 

Under  the  same  general  grant  of  judicial  power  jurisdiction 
over  suits  brought  by  the  United  States  has  been  sustained. 
United  States  v.  Texas,  143  U.  S.  621;  s.  c,  162  U.  S.  1;  United 
States  V.  Michigan,  190  U.  S.  379. 

The  exemption  of  the  United  States  to  suit  in  one  of  its  own 
courts  without  its  consent  has  been  repeatedly  recognized.  Kansas 
V.  United  States,  204  U.  S.  331,  341,  and  cases  cited. 

Turning  now  to  the  controversy  as  here  presented,  it  is  whether 
Kansas  has  a  right  to  the  continuous  fjow  of  the  waters  of  the 
Arkansas  River,  as  that  flow  existed  before  any  human  interference 
therewith,  or  Colorado  the  right  to  appropriate  the  waters  of  that 
stream  so  as  to  prevent  that  continuous  flow,  or  that  the  amount 
of  the  flow  is  subject  to  the  superior  authority  and  supervisory 
control  of  the  United  States.  While  several  of  the  defendant 
corporations  have  answered,  it  is  unnecessary  to  specially  consider 
their  defenses,  for  if  the  case  against  Colorado  fails  it  fails  also  as 
against  them.  Colorado  denies  that  it  is  in  any  substantial 
manner  diminishing  the  flow  of  the  Arkansas  River  into  Kansas. 
If  that  be  true  then  it  is  in  no  way  infringing  upon  the  rights  of 
Kansas.  If  it  is  diminishing  that  flow  has  it  an  absolute  right  to 
determine  for  itself  the  extent  to  which  it  will  diminish  it,  even  to 
the  entire  appropriation  of  the  water  ?  And  if  it  has  not  that 
absolute  right  is  the  amount  of  appropriation  that  it  is  now  making 
such  an  infringement  upon  the  rights  of  Kansas  as  to  call  for 
judicial  interference  ?  Is  the  question  one  solely  between  the 
States  or  is  the  matter  subject  to  national  legislative  regulation, 
and,  if  the  latter,  to  what  extent  has  that  regulation  been  carried  ? 
Clearly  this  controversy  is  one  of  a  justiciable  nature.  The  right 
to  the  flow  of  a  stream  was  one  recognized  at  common  law,  for  a 
trespass  upon  which  a  cause  of  action  existed. 

The  primary  question  is,  of  course,  of  national  control.  For, 
if  the  Nation  has  a  right  to  regulate  the  flow  of  the  waters,  we 
must  inquire  what  it  has  done  in  the  way  of  regulation.  If  it 
has  done  nothing  the  further  question  vriW  then  arise,  what  are 
the  respective  rights  of  the  two  States  in  the  absence  of  national 
regulation  ?  Congress  has,  by  virtue  of  the  grant  to  it  of  power 
to  regulate  commerce  "  among  the  several  States,"  extensive 
control  over  the  highways,  natural  or  artificial,  upon  which  such 
commerce  may  be  carried.     It  may  prevent  or  remove  obstructions 


KANSAS    V.    COLORADO.  179 

in  the  natural  waterways  and  preserve  the  navigability  of  those 
ways.  .  .  . 

If  in  the  present  case  the  National  Government  was  asserting, 
as  against  either  Kansas  or  Colorado,  that  the  appropriation  for 
the  purposes  of  irrigation  of  the  waters  of  the  Arkansas  was  affect- 
ing the  navigability  of  the  stream,  it  would  become  our  duty  to 
determine  the  truth  of  the  charge.  But  the  Government  makes 
no  such  contention.  .  .  . 

It  rests  its  petition  of  intervention  upon  its  alleged  duty  of 
legislating  for  the  reclamation  of  arid  lands;  alleges  that  in  or 
near  the  Arkansas  River,  as  it  runs  through  Kansas  and  Colorado, 
are  large  tracts  of  those  lands;  that  the  National  Government  is 
itself  the  owner  of  many  thousands  of  acres;  that  it  has  the  right 
to  make  such  legislative  provision  as  in  its  judgment  is  needful 
for  the  reclamation  of  all  these  arid  lands  and  for  that  purpose  to 
appropriate  the  accessible  waters.  .  .  . 

In  other  words,  the  determination  of  the  rights  of  the  two 
States  iiUer  sese  in  regard  to  the  flow  of  waters  in  the  Arkansas 
River  is  subordinate  to  a  superior  right  on  the  part  of  the  National 
Government  to  control  the  whole  sj'stem  of  the  reclamation  of 
arid  lands.  That  involves  the  question  whether  the  reclamation 
of  arid  lands  is  one  of  the  powers  granted  to  the  General  Govern- 
ment. As  heretofore  stated,  the  constant  declaration  of  this  court 
from  the  beginning  is  that  this  Government  is  one  of  enumerated 
powers.  "  The  Government,  then,  of  the  United  States,  can 
claim  no  powers  which  are  not  granted  to  it  by  the  Constitution, 
and  the  powers  actually  granted  must  be  such  as  are  expressly 
given,  or  given  by  necessary'  implication."  Story,  J.,  in  Martin  v. 
Hunter's  Lessee,  I  Wheat.  304,  326.  "  The  Government  of  the 
United  States  is  one  of  delegated,  limited,  and  enumerated  powers." 
United  States  v.  Harris,  106  U.  S.  629,  635. 

Turning  to  the  enumeration  of  the  powers  granted  to  Congress 
by  the  eighth  section  of  the  first  article  of  the  Constitution,  it  is 
enough  to  say  that  no  one  of  them  by  any  implication  refers  to 
the  reclamation  of  arid  lands.  .  .  .  The  Constitution  is  not  to 
be  construed  technically  and  narrowly,  as  an  indictment,  or  even 
as  a  grant  presumably  against  the  interest  of  the  grantor,  and 
passing  only  that  which  is  clearly  included  within  its  language, 
but  as  creating  a  system  of  government  whose  provisions  are 
designed  to  make  effective  and  operative  all  the  governmental 
powers  granted.      Yet  while  so  construed  it  still  is  true  that  no 


180  FEDERAL   GOVERNMENT. 

independent   and   unmentioned   power   passes   to   the   National 
Government  or  can  rightfully  be  exercised  by  the  Congress. 

We  must  look  beyond  section  8  for  Congressional  authority 
over  arid  lands,  and  it  is  said  to  be  found  in  the  second  para- 
graph of  section  3  of  Article  IV,  reading:  "  The  Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  belonging  to 
the  United  States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United  States,  or  of 
any  particular  State." 

The  full  scope  of  this  paragraph  has  never  been  definitely 
settled.  .  .  .  But  clearly  it  does  not  grant  to  Congress  any 
legislative  control  over  the  States,  and  must,  so  far  as  they  are 
concerned,  be  limited  to  authority  over  the  property  belonging 
to  the  United  States  within  their  limits.  Appreciating  the  force 
of  this,  counsel  for  the  Government  relies  upon  "  the  doctrine  of 
sovereign  and  inherent  power,"  adding  "  I  am  aware  that  in  ad- 
vancing this  doctrine  I  seem  to  challenge  great  decisions  of  the 
court,  and  I  speak  with  deference."  His  argument  runs  sub- 
stantially along  this  line:  All  legislative  power  must  be  vested 
in  either  the  state  or  the  National  Government;  no  legislative 
powers  belong  to  a  state  goverrunent  other  than  those  which 
affect  solely  the  internal  affairs  of  that  State;  consequently  all 
powers  which  are  national  in  their  scope  must  be  found  vested  in 
the  Congress  of  the  United  States.  But  the  proposition  that  there 
are  legislative  powers  affecting  the  Nation  as  a  whole  which  belong 
to,  although  not  expressed  in  the  grant  of  powers,  is  in  direct 
conflict  with  the  doctrine  that  this  is  a  government  of  enumerated 
powers.  That  this  is  such  a  government  clearly  appears  from  the 
Constitution,  independently  of  the  Amendments,  for  otherwise 
there  would  be  an  instrument  granting  certain  specified  things 
made  operative  to  grant  other  and  distinct  things.  This  natural 
construction  of  the  original  body  of  the  Constitution  is  made 
absolutely  certain  by  the  Tenth  Amendment.  .  .  .  This  Article  X 
is  not  to  be  shorn  of  its  meaning  by  any  narrow  or  technical  con- 
struction, but  is  to  be  considered  fairly  and  hberally  so  as  to  give 
effect  to  its  scope  and  meaning.^  .  .  . 

But  it  is  useless  to  pursue  the  inquiry  further  in  this  direction. 
It  is  enough  for  the  purposes  of  this  case  that  each  State  has  full 

I  Here  was  quoted  Fairbank  v.  United  States,  181  U.  S.  283,  288  (1901). 
—  Ed; 


KANSAS   V.    COLORADO.  181 

jurisdiction  over  the  lands  within  its  borders,  including  the  beds 
of  streams  and  other  waters.  .  .  . 

It  does  not  follow,  however,  that  because  Congress  cannot 
determine  the  rule  which  shall  control  between  the  two  States  or 
because  neither  State  can  enforce  its  own  policy  upon  the  other, 
that  the  controversy  ceases  to  be  one  of  a  justiciable  nature,  or 
that  there  is  no  power  which  can  take  cognizance  of  the  contro- 
versy and  determine  the  relative  rights  of  the  two  States.  Indeed, 
the  disagreement,  coupled  with  its  effect  upon  a  stream  passing 
through  the  two  States,  makes  a  matter  for  investigation  and 
determination  by  this  court.  .  .  . 

One  cardinal  rule,  underlying  all  the  relations  of  the  States  to 
each  other,  is  that  of  equality  of  right.  Each  State  stands  on  the 
same  level  with  all  the  rest.  It  can  impose  its  own  legislation  on 
no  one  of  the  others,  and  is  bound  to  yield  its  own  views  to  none. 
Yet,  whenever,  as  in  the  case  of  Missouri  v.  Illinois,  180  U.  S.  208, 
the  action  of  one  State  reaches  through  the  agency  of  natural 
laws  into  the  territory  of  another  State,  the  question  of  the  extent 
and  the  limitations  of  the  riglits  of  the  two  States  becomes  a 
matter  of  justiciable  dispute  between  them,  and  this  court  is  called 
upon  to  settle  that  dispute  in  such  a  way  as  will  recognize  the 
equal  rights  of  both  and  at  the  same  time  establish  justice  between 
them.  In  other  words,  through  these  successive  disputes  and 
decisions  this  court  is  practically  building  up  what  may  not 
improperly  be  called  interstate  common  law.  This  very  case 
presents  a  significant  illustration.  Before  either  Kansas  or 
Colorado  was  settled  the  Arkansas  River  was  a  stream  running 
through  the  territory  which  now  composes  these  two  States.  Arid 
lands  abound  in  Colorado.  Reclamation  is  possible  only  by  the 
application  of  water,  and  the  extreme  contention  of  Colorado  is 
tliat  it  has  a  right  to  appropriate  all  the  waters  of  this  stream  for 
the  purposes  of  irrigating  its  soil  and  making  more  valuable  its 
own  territory.  But  the  approi)riation  of  the  entire  flow  of  the 
river  would  naturally  tend  to  make  the  lands  along  the  stream  in 
Kansas  less  arable.  It  would  be  taking  from  the  adjacent  territory 
that  which  had  been  the  customary  natural  means  of  preserving 
its  arable  character.  On  the  other  hand,  the  possible  conten- 
tion of  Kansas,  that  the  flowing  water  in  the  Arkansas  must,  in 
accordance  with  the  extreme  doctrine  of  the  common  law  of 
England,  be  left  to  flow  as  it  was  wont  to  flow,  no  portion  of  it 
being  appropriated  in  Colorado  for  the  purposes  of  irrigation, 
would  have  the  effect  to  perpetuate  a  desert  condition  in  portions 


182  FEDERAL   GOVERNMENT. 

of  Colorado  beyond  the  power  of  reclamation.  Surely  here  is  a 
dispute  of  a  justiciable  nature  which  must  and  ought  to  be  tried 
and  determined.  If  the  two  States  were  absolutely  independent 
nations  it  would  be  settled  by  treaty  or  by  force.  Neither  of  these 
ways  being  practicable,  it  must  be  settled  by  decision  of  this 
court.  .  .  . 

It  is  the  State  of  Kansas  which  invokes  the  action  of  this  court, 
charging  that  through  the  action  of  Colorado  a  large  portion  of 
its'territory  is  threatened  with  disaster.  In  this  respect  it  is  in  no 
manner  evading  the  provisions  of  the  Eleventh  Amendment  to  the 
Federal  Constitution.  It  is  not  acting  directly  and  solely  for  the 
benefit  of  any  individual  citizen  to  protect  his  riparian  rights. 
Beyond  its  property  rights  it  has  an  interest  as  a  State  in  this  large 
tract  of  land  bordering  on  the  Arkansas  River.  Its  prosperity 
affects  the  general  welfare  of  the  State.  The  controversy  rises, 
therefore,  above  a  mere  question  of  local  private  right  and  involves 
a  matter  of  state  interest,  and  must  be  considered  from  that 
standpoint.  .  .  . 

And  here  we  must  notice  the  local  law  of  Kansas  .  .  .  pre- 
mising that  the  views  expressed  in  this  opinion  are  to  be  confined 
to  a  case  in  which  the  facts  and  the  local  law  of  the  two  States  are 
as  here  disclosed.^  .  .  . 

As  Kansas  thus  recognizes  the  right  of  appropriating  the  waters 
of  a  stream  for  the  purposes  of  irrigation,  subject  to  the  condition 
of  an  equitable  division  between  the  riparian  proprietors,  she 
cannot  complain  if  the  same  rule  is  administered  between  herself 
and  a  sister  State.  And  this  is  especially  true  when  the  waters 
are,  except  for  domestic  purposes,  practically  useful  only  for 
purposes  of  irrigation.  ... 

Summing  up  our  conclusions,  we  are  of  the  opinion  .  .  .  that 
the  appropriation  of  the  waters  of  the  Arkansas  by  Colorado,  for 
purposes  of  irrigation,  has  diminished  the  flow  of  water  into  the 
State  of  Kansas;  that  the  result  of  that  appropriation  has  been 
the  reclamation  of  large  areas  in  Colorado,  transforming  thousands 
of  acres  into  fertile  fields  and  rendering  possible  their  occupation 
and  cultivation  when  otherwise  they  would  have  continued  barren 
and  unoccupied;  that  while  the  influence  of  such  diminution  has 
been  of  perceptible  injury  to  portions  of  the  Arkansas  Valley  in 
Kansas,  particularly  those  portions  closest  to  the  Colorado  line, 

1  Here  was  quoted  the  syllabus  of  Clark  v.  Allaman,  71  Kansas,  206  (1905). 
—  Ed. 


KANSAS    V.    COLORADO.  183 

yet  to  the  great  body  of  the  valley  it  has  worked  httle,  if  any, 
detriment,  and  regarding  the  interests  of  both  States  and  the  right 
of  each  to  receive  benefit  through  irrigation  and  in  any  other 
manner  from  the  waters  of  this  stream,  we  are  not  satisfied  that 
Kansas  has  made  out  a  case  entitling  it  to  a  decree. 

The  decree  which,  therefore,  will  be  entered  will  be  one  dis- 
missing the  petition  of  the  intervenor,  without  prejudice  to  the 
rights  of  the  United  States  to  take  such  action  as  it  shall  deem 
necessary  to  preserve  or  improve  the  navigability  of  the  Arkansas 
River.  The  decree  will  also  dismiss  the  bill  of  the  State  of  Kansas 
as  against  all  the  defendants,  without  prejudice  to  the  right  of  the 
plaintiff  to  institute  new  proceedings  whenever  it  shall  appear  that 
through  a  material  increase  in  the  depletion  of  the  waters  of  the 
Arkansas  by  Colorado,  its  corporations  or  citizens,  the  substantial 
interests  of  Kansas  are  being  injured  to  the  extent  of  destroying  the 
equitable  apportionment  of  benefits  between  the  two  States 
resulting  from  the  flow  of  the  river.'  Each  party  ^vill  pay  its  own 
costs.   .   .  . 

White  and  McKenna,  JJ.,  concur  in  the  result. 
Moody,  J.,  took  no  part  in  the  decision  of  this  case. 

1  Soe  Georgia  v.  Tennessee  Copper  Co.,  20G  U.  S.  230  (1907),  — as  to 
noxious  fumes  poUuting  the  air  of  a  neighboring  State  and  injuring  vegeta- 
tion.  —  Ed. 


184  FEDERAL   GOVERNMENT. 

COYLE  V.  SMITH,  Secretary  of  State  of  Oklahoma. 

Supreme  Court  of  the  United  States.     1911. 

[221  United  States,  559.] ' 

Error  to  the  Supreme  Court  of  Oklahoma,  to  review  a  judgment 
upholding  a  State  legislative  act  of  December  29,  1910,  for  the 
removal  of  the  capital  from  Guthrie  to  Oklahoma  City.  The 
Enabhng  Act  of  Congress,  June  16,  1906,  had  provided,  among 
other  limitations  on  the  projected  State,  that  the  capital  "  shall 
temporarily  be  at  the  city  of  Guthrie  and  shall  not  be  changed 
therefrom  previous  to  A.  D.  1913,"  and  that  the  constitutional 
convention  "  shall,  by  ordinance  irrevocable,  accept  the  terms  and 
conditions  of  this  act."  The  constitutional  convention  framed  a 
constitution  containing  nothing  as  to  the  capital,  but  it  framed 
and  adopted  a  separate  orchnance  accepting  the  terms  and  condi- 
tions of  the  Enabling  Act.  The  constitution  and  this  ordinance 
were  submitted  to  the  people  simultaneously  and  separately  and 
were  ratified. 

Frank  Dale,  C.  G.  Hornor  and  John  H.  Burford,  with  whom 
A.  G.  C.  Bierer,  Frank  B.  Burford,  and  Benj.  F.  Hegler  were  on  the 
brief,  for  plaintiff  in  error. 

Charles  West,  Attorney  General  of  Oklahoma,  B.  F.  Burwell  and 
J.  W.  Bailey,  with  whom  C.  B.  Stuart  and  W.  A.  Ledbetter  were  on 
the  brief,  for  defendant  in  error. 

LuRTON,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  power  to  locate  its  own  seat  of  government  and  to  deter- 
mine when  and  how  it  shall  be  changed  from  one  place  to  another, 
and  to  appropriate  its  owti  public  funds  for  that  purpose,  are 
essentially  and  peculiarly  state  powers.  That  one  of  the  original 
thirteen  States  could  now  be  shorn  of  such  powers  by  an  act  of 
Congress  would  not  be  for  a  moment  entertained.  The  question 
then  comes  to  this:  Can  a  State  be  placed  upon  a  plane  of  in- 
equality with  its  sister  States  in  the  Union  if  the  Congress  chooses 
to  impose  conditions  which  so  operate,  at  the  time  of  its  admission  ? 
The  argument  is,  that  while  Congress  may  not  deprive  a  State  of 
anj^  power  which  it  possesses,  it  may,  as  a  condition  to  the  admis- 

1  An  abbreviated  statement  has  been  framed  upon  facts  given  in  the 
opinion.  —  Ed. 


COYLE    V.    SMITH.  185 

sion  of  a  new  State,  constitutionally  restrict  its  authority,  to  the 
extent  at  least,  of  suspending  its  powers  for  a  definite  time  in 
respect  to  the  location  of  its  seat  of  government.  This  contention 
is  predicated  upon  the  constitutional  power  of  admitting  new 
States  to  this  Union,  and  the  constitutional  duty  of  guaranteeing 
to  "  every  State  in  this  Union  a  republican  form  of  government." 
The  position  of  counsel  for  the  appellants  is  substantially  this: 
That  the  power  of  Congress  to  admit  new  States  and  to  determine 
whether  or  not  its  fundamental  law  is  republican  in  form,  are 
political  powers,  and  as  such,  uncontrollable  by  the  courts.  That 
Congress  may  in  the  exercise  of  such  power  impose  terms  and 
conditions  upon  the  admission  of  the  proposed  new  State,  which, 
if  accepted,  will  be  obligatory,  although  they  operate  to  deprive 
the  State  of  powers  which  it  would  otherwise  possess,  and  there- 
fore, not  admitted  upon  "  an  equal  footing  with  the  original 
States." 

The  power  of  Congress  in  respect  to  the  admission  of  new  States 
is  found  in  the  third  section  of  the  fourth  Article  of  the  Constitu- 
tion. That  provision  is  that,  "  new  States  may  be  admitted  by 
the  Congress  into  this  Union."  The  only  expressed  restriction 
upon  this  power  is  that  no  new  State  shall  be  formed  within  the 
jurisdiction  of  any  other  State,  nor  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent  of  such  States,  as 
well  as  of  the  Congress. 

But  what  is  this  power  ?  It  is  not  to  admit  political  organiza- 
tions which  are  less  or  greater,  or  different  in  dignity  or  power, 
from  those  political  entities  which  constitute  the  Union.  It  is, 
as  strongly  put  by  counsel,  a  "  power  to  admit  States." 

The  definition  of  "  a  State  "  is  found  in  the  powers  possessed 
by  the  original  States  which  adopted  the  Constitution,  a  definition 
empha.'^ized  by  the  terms  employed  in  all  subsequent  acts  of  Con- 
gress admitting  new  States  into  the  Union.  The  first  two  States 
admitted  into  the  Union  were  the  States  of  Vermont  and  Ken- 
tucky, one  as  of  March  4,  1791,  and  the  other  as  of  June  1, 
1792.  No  terms  or  conditions  were  exacted  from  either.  Each 
act  declares  that  the  State  is  admitted  "  as  a  new  and  entire 
member  of  the  United  States  of  America."  1  Stat.  189,  191. 
Emphatic  and  significant  as  is  the  phrase  admitted  as  "  an  entire 
member,"  even  stronger  was  the  declaration  upon  the  admission 
in  1796  of  Tennessee,  as  the  third  new  State,  it  being  declared  to 
be  "  one  of  the  United  States  of  America,"  "  on  an  equal  footing 


186  FEDERAL    GOVERNMENT. 

with  the  original  States  in  all  respects  whatsoever/'  phraseology 
which  has  ever  since  been  substantially  followed  in  admission 
acts,  concluding  with  the  Oklahoma  act,  which  declares  that 
Oklahoma  shall  be  admitted  "on  an  equal  footing  with  the 
original  States." 

The  power  is  to  admit  "  new  States  into  this  Union." 

"  This  Union  "  was  and  is  a  union  of  States,  equal  in  power, 
dignity  and  authority,  each  competent  to  exert  that  residuum  of 
sovereignty  not  delegated  to  the  United  States  by  the  Constitu- 
tion itself.  To  maintain  otherwise  would  be  to  say  that  the 
Union,  through  the  power  of  Congress  to  admit  new  States,  might 
come  to  be  a  union  of  States  unequal  in  power,  as  including  States 
whose  powers  were  restricted  only  by  the  Constitution,  with  others 
whose  powers  had  been  further  restricted  by  an  act  of  Congress 
accepted  as  a  condition  of  admission.  Thus  it  would  result,  first, 
that  the  powers  of  Congress  would  not  be  defined  by  the  Constitu- 
tion alone,  but  in  respect  to  new  States,  enlarged  or  restricted  by 
the  conditions  imposed  upon  new  States  by  its  own  legislation 
admitting  them  into  the  Union ;  and,  second,  that  such  new  States 
might  not  exercise  all  of  the  powers  which  had  not  been  delegated 
by  the  Constitution,  but  only  such  as  had  not  been  further  bar- 
gained away  as  conditions  of  admission.  .  .  . 

If  anything  was  needed  to  complete  the  argument  against  the 
assertion  that  Oklahoma  has  not  been  admitted  to  the  Union  upon 
an  equality  of  power,  dignity  and  sovereignty  with  Massachusetts 
or  Virginia,  it  is  "afforded  by  the  express  provision  of  the  act  of 
admission,  by  which  it  is  declared  that  when  the  people  of  the 
proposed  new  State  have  complied  with  the  terms  of  the  act  that 
it  shall  be  the  duty  of  the  President  to  issue  his  proclamation,  and 
that  "  thereupon  the  proposed  State  of  Oklahoma  shall  be  deemed 
admitted  by  Congress  into  the  Union  under  and  by  virtue  of  this 
act,  on  an  equal  footing  with  the  original  States.'"  The  proclama- 
tion has  been  issued  and  the  Senators  and  Representatives  from 
the  State  admitted  to  their  seats  in  the  Congress. 

Has  Oklahoma  been  admitted  upon  an  equal  footing  with  the 
original  States  ?  If  she  has,  she  by  virtue  of  her  jurisdictional 
sovereignty  as  such  a  State  may  determine  for  her  own  people  the 
proper  location  of  the  local  seat  of  government.  She  is  not  equal 
in  power  to  them  if  she  cannot.  .  .  . 

To  this  we  may  add  that  the  constitutional  equality  of  the 
States  is  essential  to  the  harmonious  operation  of  the  scheme  upon 


COYLE    V.    SMITH.  187 


which  the  Republic  was  organized.  When  that  equaUty  dis- 
appears we  may  remain  a  free  people,  but  the  Union  will  not  be 
the  Union  of  the  Constitution. 

Judgment  affirmed.^ 
McKenna  and  Holmes,  JJ.,  dissent. 


1  On  the  present  effect  of  the  Ordinance  of  1787  as  to  the  Territory  North- 
west of  the  River  Ohio,  see  Escanaba  Company  v.  Chicago,  107  U.  S.  678 
(1882),  and  Cincinnati  v.  L.  &  N.  R.  Co.,  223  U.  S.  390  (1912).  —Ed. 


CHAPTER  III. 

THE  DISTRICT  OF  COLUMBIA,  THE  TERRITORIES, 

THE  INSULAR  POSSESSIONS,  AND  KINDRED  TOPICS: 

OR  QUASI- IMPERIAL  GOVERNMENT. 

HEPBURN  AND  DUNDAS  v.  ELLZEY. 
Supreme  Court  of  the  United  States.    1805. 

[2  Cranch,  445.] 

This  was  a  question  certified  from  the  circuit  court  for  the 
fifth  circuit,  holden  in  the  Virginia  district,  on  which  the  opinions 
of  the  judges  of  that  court  were  opposed.  (2  U.  S.  Stat.  159, 
sec.  6.) 

The  certificate  sets  forth  that  "  in  this  cause  it  occurred  as  a 
question  whether  Hepburn  and  Dundas,  the  plaintiffs  in  this 
cause,  who  are  citizens  and  residents  of  the  District  of  Columbia, 
and  are  so  stated  in  the  pleadings,  can  maintain  an  action  in  this 
court  against  the  defendant  who  is  a  citizen  and  inhabitant  of 
the  commonwealth  of  \'irginia,  and  is  also  stated  so  to  be  in  the 
pleadings,  or  whether  for  want  of  jurisdiction  the  said  suit  ought 
not  to  be  dismissed." 

E.  J.  Lee,  for  the  plaintiffs;  and  C  Lee,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  question  in  this  case  is  whether  the  plaintiffs,  as  residents 
of  the  district  of  Columbia,  can  maintain  an  action  in  the  circuit 
court  of  the  United  States  for  the  district  of  Virginia. 

This  depends  on  the  act  of  congress  describing  the  jurisdiction 
of  that  court.  That  act  gives  jurisdiction  to  the  circuit  courts 
in  cases  between  a  citizen  of  the  state  in  which  the  suit  is  brought, 
and  a  citizen  of  another  state.  To  support  the  jurisdiction  in 
this  case  therefore  it  must  appear  that  Columbia  is  a  state. 

On  the  part  of  the  plaintiffs  it  has  been  urged  that  Columbia 
is  a  distinct  political  society;  and  is  therefore  "  a  state  "  according 
to  the  definitions  of  writers  on  general  law. 

This  is  true.  But  as  the  act  of  congress  obviously  uses  the 
word  "  state  "  in  reference  to  that  term  as  used  in  the  Constitution, 
it  becomes  necessary  to  inquire  whether  Columbia  is  a  state  in 


HEPBURN    V.    ELLZEY.  189 

the  sense  of  that  instrument.  The  result  of  that  examination  is 
a  conviction  that  the  members  of  the  American  confederacy  only 
are  the  states  contemplated  in  the  Constitution. 

The  House  of  Representatives  is  to  be  composed  of  members 
chosen  by  the  people  of  the  several  states;  and  each  state  shall 
have  at  least  one  representative. 

The  senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  state. 

Each  state  shall  appoint,  for  the  election  of  the  executive,  a 
number  of  electors  equal  to  its  whole  number  of  senators  and 
representatives. 

These  clauses  show  that  the  word  state  is  used  in  the  Constitu- 
tion as  designating  a  member  of  the  union,  and  excludes  from  the 
term  the  signification  attached  to  it  by  writers  on  the  law  of 
nations.  When  the  same  term  which  has  been  used  plainly  in 
this  limited  sense  in  the  articles  respecting  the  legislative  and 
executive  departments,  is  also  employed  in  that  which  respects 
the  judicial  department,  it  must  be  understood  as  retaining  the 
sense  originally  given  to  it. 

Other  passages  from  the  Constitution  have  been  cited  by  the 
plaintiffs  to  show  that  the  term  state  is  sometimes  used  in  its 
more  enlarged  sense.  But  on  examining  the  passages  quoted, 
they  do  not  prove  what  was  to  be  shown  by  them. 

It  is  true  that  as  citizens  of  the  United  States,  and  of  that 
particular  district  which  is  subject  to  the  jurisdiction  of  congress, 
it  is  extraordinary  that  the  courts  of  the  United  States,  which  are 
open  to  aliens,  and  to  the  citizens  of  every  state  in  the  union, 
should  be  closed  upon  them.  —  But  this  is  a  subject  for  legis- 
lative, not  for  judicial  consideration. 

The  opinion  to  be  certified  to  the  circuit  court  is  that  that 
court  has  no  jurisdiction  in  the  case.^ 

1  See  Barney  i'.  Baltimore,  6  Wall.  280  (1867);  Cissel  v.  McDonald,  16 
Blatch.  C.  C.  150  (1879);  Hooe  v.  Jamieson,  166  U.  S.  395  (1897).  Compare 
Loughborough  v.  Blake,  5  Wheat.  317  (1820).  —  Ed. 


190  DISTRICT   OF   COLUMBIA,    ETC. 

CORPORATION   OF  NEW  ORLEANS  v.  WINTER  et  al. 
Supreme  Court  of  the  United  States.     181G. 

[1  Wheaton,  91.] 

Error  from  the  district  court  for  the  district  of  Louisiana. 
The  defendants  in  error  commenced  their  suit  in  the  said  court, 
to  recover  the  possession  and  property  of  certain  lands  in  the  city 
of  New  Orleans;  claiming  title  as  the  heirs  of  Elisha  Winter, 
deceased,  under  an  alleged  grant  from  the  Spanish  government, 
in  1791;  which  lands,  it  was  stated,  were  afterwards  reclaimed 
by  the  Baron  de  Carondelet,  governor  of  the  province  of  Louisiana, 
for  the  use  of  fortifications.  One  of  the  parties,  petitioners  in 
the  court  below,  was  described  in  the  record  as  a  citizen  of  the 
state  of  Kentucky;  and  the  other,  as  a  citizen  of  the  Mississippi 
territory.  The  petitioners  recovered  a  judgment  in  the  court 
below,  from  which  a  writ  of  error  was  brought. 

Winder  and  Harper,  for  the  plaintiffs  in  error;   and  Key,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  and, 
after  stating  the  facts,  proceeded  as  follows: 

The  proceeding  of  the  court,  therefore,  is  arrested  in  limine, 
by  a  question  respecting  its  jurisdiction.  In  the  case  of  Hepburn 
&  Dundas  v.  Ellzey,  this  court  determined,  on  mature  considera- 
tion, that  a  citizen  of  the  district  of  Columbia  could  not  maintain 
a  suit  in  the  circuit  court  of  the  United  States.  That  opinion  is 
still  retained. 

It  has  been  attempted  to  distinguish  a  Territory  from  the 
district  of  Columbia;  but  the  court  is  of  opinion,  that  this  dis- 
tinction cannot  be  maintained.  They  may  differ  in  many  respects, 
but  neither  of  them  is  a  state,  in  the  sense  in  which  that  terrh  is 
used  in  the  Constitution.  Every  reason  assigned  for  the  opinion 
of  the  court,  that  a  citizen  of  Columbia  was  not  capable  of  suing 
in  the  courts  of  the  United  States,  under  the  Judiciary  Act,  is 
equally  applicable  to  a  citizen  of  a  territory.  Gabriel  Winter, 
then,  being  a  citizen  of  the  Mississippi  Territory,  was  incapable 
of  maintaining  a  suit  alone  in  the  circuit  court  of  Louisiana.  Is 
his  case  mended  by  being  associated  with  other*  who  are  capable 
of  suing  in  that  court  ?    In  the  case  of  Strawbridge  et  al.  v.  Curtis  ^ 

1  3Cranch,267  (1806).  See  also  CoalCo.v.Blatchford,  11  Wall.  172  (1870); 
Peninsular  Iron  Co.  v.  Stone,  121  U.  S.  631  (1887);  Smith  v.  Lyon,  133  U.  S. 
315  (1890).  — Ed.    , 


AMERICAN    INSURANCE    COMPANY   V.    CANTER.  191 

et  al,  it  was  decided,  that  where  a  joint  interest  is  prosecuted,  the 
jurisdiction  cannot  be  sustained,  unless  each  individual  be  en- 
titled to  claim  that  jurisdiction.  In  this  case  it  has  been  doubted, 
whether  the  parties  might  elect  to  sue  jointly  or  severally.  How- 
ever this  may  be,  having  elected  to  sue  jointly,  the  court  is  in- 
capable of  distinguishing  their  case,  so  far  as  respects  jurisdiction, 
from  one  in  which  they  were  compelled  to  unite.  The  circuit 
court  of  Louisiana,  therefore,  had  no  jurisdiction  of  the  cause, 
and  their  judgment  must,  on  that  account,  be  reversed,  and  the 
petition  dismissed.  Judgment  reversed. 


AMERICAN   INSURANCE  COMPANY  and  OCEAN 

INSURANCE  COMPANY,  Appellants,  v.  THREE  HUNDRED 

FIFTY-SIX   BALES   OF  COTTON:  DAVID   CANTER, 

Claimant  and  Appellee. 

Supreme  Court  of  the  United  States.     1828. 
[1  Peters,  511.]  1 

Appeal  from  the  Circuit  Court  of  South  Carolina.^ 

Ogden,  for  the  appellants;   and  Whipple  and  Webster,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  filed  their  libel  in  this  cause  in  the  District  Court 
of  South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton, 
part  of  the  cargo  of  the  ship  Point  a  Petre;  which  had  been 
insured  by  them  on  a  voyage  from  New  Orleans  to  Havre  de 
Grace,  in  France.  The  Point  a  Petre  was  wrecked  on  the  coast 
of  Florida,  the  cargo  saved  by  the  inhabitants,  and  carried  into 
Key  West,  where  it  was  sold  for  the  purpose  of  satisfying  the 
salvors;  by  virtue  of  a  decree  of  a  Court,  consisting  of  a  notary 
and  five  jurors,  which  was  erected  by  an  Act  of  the  territorial 
legislature  of  Florida.  The  owners  abandoned  to  the  under- 
%\Titcrs,  who  having  accepted  the  same,  proceeded  against  the 
property;  alleging  that  the  sale  was  not  made  by  order  of  a 
Court  competent  to  change  the  property. 

'  The  reportor's  statement  has  not  been  reprinted.  —  Ed. 
*  The  opinion  of  Johnson,  J.,  in  the  Circuit  Court  is  reported  in  1  Peters, 
515,  note.  —  Ed. 


192  DISTRICT   OF    COLUMBIA,    ETC. 

David  Canter  claimed  the  cotton  as  a  bona  fide  purchaser, 
under  the  decree  of  a  competent  Court,  which  awarded  seventy- 
six  per  cent  to  the  salvors,  on  the  value  of  the  property  saved. 

The  District  Judge  pronounced  the  decree  of  the  territorial 
Court  a  nullity,  and  awarded  restitution  to  the  libcllants  of 
such  part  of  the  cargo  as  he  supposed  to  be  identified  by  the 
evidence;  deducting  therefrom  a  salvage  of  fifty  per  cent. 

The  libellants  and  claimant  both  appealed.  The  Circuit 
Court  reversed  the  decree  of  the  District  Court,  and  decreed 
the  whole  cotton  to  the  claimant,  with  costs;  on  the  ground 
that  the  proceedings  of  the  Court  at  Key  West  were  legal,  and 
transferred  the  property  to  the  purchaser. 

From  this  decree  the  libellants  have  appealed  to  this  Court. 

The  cause  depends,  mainly,  on  the  question  whether  the  prop- 
erty in  the  cargo  saved,  was  changed  by  the  sale  at  Key  West. 
The  conformity  of  that  sale  to  the  order  under  which  it  was 
made,  has  not  been  controverted.  Its  validity  has  been  denied, 
on  the  ground  that  it  was  ordered  by  an  incompetent  tribunal. 

The  tribunal  was  constituted  by  an  Act  of  the  territorial  legis- 
lature of  Florida,  passed  on  the  4th  July,  1823,  which  is  inserted 
in  the  record.  That  Act  purports  to  give  the  power  which  has 
been  exercised;  consequently  the  sale  is  valid,  if  the  territorial 
legislature  was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken,  will  require,  that, 
in  deciding  this  question,  the  Court  should  take  into  view  the 
relation  in  which  Florida  stands  to  the  United  States. 

The  Constitution  confers  absolutely  on  the  government  of  the 
Union,  the  powers  of  making  war,  and  of  making  treaties;  conse- 
quently, that  government  possesses  the  power  of  acquiring  terri- 
tory, either  by  conquest  or  by  treaty. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued, 
to  consider  the  holding  of  conquered  territory  as  a  mere  military 
occupation,  until  its  fate  shall  be  determined  at  the  treaty  of 
peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed, 
and  the  ceded  territory  becomes  a  part  of  the  nation  to  which  it 
is  annexed;  either  on  the  terms  stipulated  in  the  treaty  of  cession, 
or  on  such  as  its  niew  master  shall  impose.  On  such  transfer  of 
territory,  it  has  never  been  held,  that  the  relations  of  the  in- 
habitants with  each  other  undergo  any  change.  Their  relations 
with  their  former  sovereign  are  dissolved,  and  new  relations  are 
created  between  them  and  the  government  which  has  acquired 
their  territory.    The  same  Act  which  transfers  their  country,  trans- 


AMERICAN   INSURANCE    COMPANY    V.    CANTER.  193 

fers  the  allegiance  of  those  who  remain  in  it;  and  the  law,  which 
may  be  denominated  political,  is  necessarily  changed,  although 
that  which  regulates  the  intercourse,  and  general  conduct  of 
individuals,  remains  in  force,  until  altered  by  the  newly  created 
power  of  the  state. 

On  the  2d  of  February,  1819,  vSpain  ceded  Florida  to  the  United 
States.  The  6th  article  of  the  treaty  of  cession,  contains  the 
following  provision —  "  The  inhabitants  of  the  territories,  which 
his  Catholic  majesty  cedes  to  the  United  States  by  this  treaty, 
shall  be  incorporated  in  the  Union  of  the  United  States,  as  soon 
as  may  be  consistent  with  the  principles  of  the  federal  Consti- 
tution; and  admitted  to  the  enjoyment  of  the  privileges,  rights, 
and  immunities  of  the  citizens  of  the  United  States." 

This  treaty  is  the  law  of  the  land,  and  admits  the  inhabi- 
tants of  Florida  to  the  enjoyment  of  the  privileges,  rights,  and 
immunities,  of  the  citizens  of  the  United  States.  It  is  unneces- 
sary to  inquire,  whether  this  is  not  their  condition,  independent 
of  stipulation.  They  do  not,  however,  participate  in  political 
power;  they  do  not  share  in  the  government,  till  Florida  shall 
become  a  state.  In  the  mean  time,  Florida  continues  to  be  a 
territory  of  the  United  States;  governed  by  virtue  of  that  clause 
in  the  Constitution,  which  empowers  Congress  "  to  make  all 
needful  rules  and  regulations,  respecting  the  territory,  or  other 
property  belonging  to  the  United  States." 

Perhaps  the  power  of  governing  a  territory  belonging  to  the 
United  States,  which  has  not,  by  becoming  a  state,  acquired  the 
means  of  self-government,  may  result  necessarily  from  the  facts, 
that  it  is  not  within  the  jurisdiction  of  any  particular  state, 
and  is  within  the  power  and  jurisdiction  of  the  United  States. 
The  right  to  govern,  may  be  the  inevitable  consequence  of  the 
right  to  acquire  territory.  Whichever  may  be  the  source  whence 
the  power  is  derived,  the  possession  of  it  is  unquestioned.  In 
execution  of  it,  Congress,  in  1822,  passed  "  an  Act  for  the  estab- 
lishment of  a  territorial  government  in  Florida  "  ;  and,  on  the 
3d  of  March,  1823,  passed  another  Act  to  amend  the  Act  of  1822. 
Under  this  Act,  the  territorial  legislature  enacted  the  law  now 
under  consideration. 

The  5th  section  of  the  Act  of  1823,  creates  a  territorial  legis- 
lature, which  shall  have  legislative  powers  over  all  rightful  objects 
of  legislation;  but  no  law  shall  be  valid,  which  is  inconsistent 
with  the  laws  and  Constitution  of  the  United  States. 


194  DISTRICT   OF    COLUMBIA,    ETC. 

The  7th  section  enacts  "  That  the  judicial  power  shall  be 
vested  in  two  Superior  Courts,  and  in  such  inferior  Courts,  and 
justices  of  the  peace,  as  the  legislative  council  of  the  territory 
may  from  time  to  time  establish."  After  prescribing  the  place 
of  session,  and  the  jurisdictional  limits  of  each  Court,  the  Act 
proceeds  to  say;  "  within  its  limits  herein  described,  each  Court 
shall  have  jurisdiction  in  all  criminal  cases,  and  exclusive  juris- 
diction in  all  capital  offences;  and  original  jurisdiction  in  all 
civil  cases  of  the  value  of  one  hundred  dollars,  arising  under  and 
cognizable  by  the  laws  of  the  territory,  now  in  force  therein,  or 
which  may,  at  any  time,  be  enacted  by  the  legislative  council 
thereof." 

The  8th  section  enacts  "  That  each  of  the  said  Superior  Courts 
shall  moreover  have  and  exercise  the  same  jurisdiction  within  its 
limits,  in  all  cases  arising  under  the  laws  and  Constitution  of  the 
United  States,  which^  by  an  Act  to  establish  the  judicial  Courts 
of  the  United  States,  approved  the  24th  of  September,  1789, 
and  an  Act  in  addition  to  the  Act,  entitled  an  Act  to  establish 
the  judicial  Courts  of  the  United  States,  approved  the  2d  of 
March,  1793,  was  vested  in  the  Court  of  Kentucky  district." 

The  powers  of  the  territorial  legislature  extend  to  all  rightful 
objects  of  legislation,  subject  to  the  restriction,  that  their  laws 
shall  not  be  "  inconsistent  with  the  laws  and  Constitution  of  the 
United  States."  As  salvage  is  admitted  to  come  within  this 
description,  the  Act  is  vahd,  unless  it  can  be  brought  within  the 
restriction. 

The  counsel  for  the  libellants  contend,  that  it  is  inconsistent 
with  both  the  law  and  the  Constitution.  .  .  . 

The  jurisdiction  of  the  Superior  Courts,  is  declared  to  be  exclu- 
sive over  capital  offences;  on  every  other  question  over  w^hich 
those  Courts  may  take  cognizance  by  virtue  of  this  section, 
concurrent  jurisdiction  may  be  given  to  the  inferior  Courts. 
Among  these  subjects,  are  "  all  civil  cases  arising  under  and 
cognizable  by  the  laws  of  the  territory,  now  in  force  therein,  or 
which  may  at  any  time  be  enacted  by  the  legislative  council 
thereof." 

It  has  been  already  stated,  that  all  the  laws  which  were  in 
force  in  Florida  while  a  province  of  Spain,  those  excepted  which 
were  political  in  their  character,  which  concerned  the  relations 
between  the  people  and  their  sovereign,  remained  in  force,  until 
altered   by   the  government  of   the   United   States.      Congress 


AMERICAN    INSURANCE    COMPANY    V.    CANTER,  195 

recognizes  this  principle,  by  using  the  words  "  laws  of  the  terri- 
tory now  in  force  therein."  No  laws  could  then  have  been  in 
force,  but  those  enacted  by  the  Spanish  government.  If  among 
these,  a  law  existed  on  the  subject  of  salvage,  and  it  is  scarcely 
possible  there  should  not  have  been  such  a  law,  jurisdiction  over 
cases  arising  under  it,  was  conferred  on  the  Superior  Courts,  but 
that  jurisdiction  was  not  exclusive.  A  territorial  Act,  conferring 
jurisdiction  over  the  same  cases  on  an  inferior  Court,  would  not 
have  been  inconsistent  with  this  section.  . 

It  has  been  contended,  that  by  the  Constitution  the  judicial 
power  of  the  United  States  extends  to  all  cases  of  admiralty 
and  maritime  jurisdiction;  and  that  the  whole  of  this  judicial 
power  must  be  vested  "in  one  Supreme  Court,  and  in  such 
inferior  Courts  as  Congress  shall  from  time  to  time  ordain,  and 
establish."  Hence  it  has  been  argued,  that  Congress  cannot 
vest  admiralty  jurisdiction  in  Courts  created  by  the  territorial 
legislature. 

We  have  only  to  pursue  this  subject  one  step  further,  to  per- 
ceive^that  this  provision  of  the  Constitution  does  not  apply  to 
it.  The  next  sentence  declares,  that  "  the  Judges  both  of  the 
Supreme  and  inferior  Courts,  shall  hold  their  offices  during  good 
behaviour."  The  Judges  of  the  Superior  Courts  of  Florida  hold 
their  offices  for  four  years.  These  Courts,  then,  are  not  con- 
stitutional Courts,  in  which  the  judicial  power  conferred  by  the 
Constitution  on  the  general  government,  can  be  deposited.  They 
are  incapable  of  receiving  it.  They  are  legislative  Courts,  created 
m  virtue  of  the  general  right  of  sovereignty  which  exists  in  the 
government,  or  in  virtue  of  that  clause  which  enables  Congress 
to  make  all  needful  rules  and  regulations,  respecting  the  territory 
belonging  to  the  United  States.  The  jurisdiction  with  which 
they  are  invested,  is  not  a  part  of  that  judicial  power  which  is 
defined  in  the  3d  article  of  the  Constitution,  but  is  conferred  by 
Congress,  in  the  execution  of  those  general  powers  which  that 
body  possesses  over  the  territories  of  the  United  States.  Although 
admiralty  jurisdiction  can  be  exercised  in  the  states  in  those 
Courts,  only,  which  are  established  in  pursuance  of  the  3d  article 
of  the  Constitution;  the  same  limitation  does  not  extend  to  the 
territories.  In  legislating  for  them,  Congress  exercises  the 
combined  powers  of  the  general,  and  of  a  state  government. 

We  think,   then,   that  the  Act  of  the  territorial   legislature, 
erecting  the  Court  by  whose  decree  the  cargo  of  the  Point  a 


196  DISTRICT   OF    COLUMBIA,    ETC. 

Petre  was  sold,  is  not  "  inconsistent  with  the  laws  and  Consti- 
tution of  the  United  States,"  and  is  vahd.  Consequently,  the 
sale  made  in  pursuance  of  it  changed  the  property,  and  the  decree 
of  the  Circuit  Court,  awarding  restitution  of  the  property  to  the 
claimant,  ought  to  be  affirmed  with  costs.  Decree  affirmed. 


CHEROKEE  NATION  v.  STATE  OF  GEORGIA. 
Supreme  Court  of  the  United  States.     1831. 

[5  Peters,  l.]i 

This  was  a  suit  begun  in  this  Court  by  filing  a  bill  which  alleged 
that  the  complainants  are  "  the  Cherokee  nation  of  Indians,  a 
foreign  state,  not  owing  allegiance  to  the  United  States,  nor  to 
any  state  of  this  Union,  nor  to  any  prince,  potentate  or  state, 
other  than  their  own,"  and  that  "  from  time  immemorial,  the 
Cherokee  nation  have  composed  a  sovereign  and  independent  state, 
and  in  this  character  have  been  repeatedly  recognized,  and  still 
stand  recognized,  by  the  United  States,  in  the  various  treaties 
subsisting  between  their  nation  and  the  United  States." 

Sergeant  and  ^yirt,  for  the  complainants;  and  no  counsel  for 
the  State  of  Georgia. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

This  bill  is  brought  by  the  Cherokee  nation,  praying  an  injunc- 
tion to  restrain  the  state  of  Georgia  from  the  execution  of  certain 
laws  of  that  state,  which,  as  is  alleged,,  go  directly  to  annihilate 
the  Cherokees  as  a  political  society,  and  to  seize,  for  the  use  of 
Georgia,  the  lands  of  the  nation  which  have  been  assured  to  them 
by  the  United  States  in  solemn  treaties  repeatedly  made  and  still 
in  force.  .  .  . 

Before  we  can  look  into  the  merits  of  the  case,  a  prehminary 
inquiry  presents  itself.     Has  this  court  jurisdiction  of  the  cause  ? 

The  third  article  of  the  Constitution  describes  the  extent  of 
the  judicial  power.  The  second  section  closes  an  enumeration 
of  the  cases  to  which  it  is  extended,  with  "  controversies  "  "  be- 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


CHEROKEE    NATION    V.    STATE    OF    GEORGIA.  197 

tween  a  state  or  the  citizens  thereof,  and  foreign  states,  citizens, 
or  subjects."  A  subsequent  clause  of  the  same  section  gives 
the  supreme  court  original  jurisdiction  in  all  cases  in  which  a 
state  shall  be  a  party.  The  party  defendant  may  then  unques- 
tionably be  sued  in  this  court.  May  the  plaintiff  sue  in  it  ?  Is 
the  Cherokee  nation  a  foreign  state  in  the  sense  in  which  that 
term  is  used  in  the  Constitution  ? 

The  counsel  for  the  plaintiffs  have  maintained  the  affirmative 
of  this  proposition  with  great  earnestness  and  ability.  So  much 
of  the  argument  as  was  intended  to  prove  the  character  of  the 
Cherokees  as  a  state,  as  a  distinct  political  society,  separated 
from  others,  capable  of  managing  its  own  affairs  and  governing 
itself,  has,  in  the  opinion  of  a  majority  of  the  judges,  been  com- 
pletely successful.  They  have  been  uniformly  treated  as  a  state 
from  the  settlement  of  our  country.  The  numerous  treaties  made 
with  them  by  the  United  States  recognize  them  as  a  people  capable 
of  maintaining  the  relations  of  peace  and  war,  of  being  responsible 
in  their  pohtical  character  for  any  violation  of  their  engagements, 
or  for  any  aggression  committed  on  the  citizens  of  the  United 
States  by  any  individual  of  their  community.  Laws  have  been 
enacted  in  the  spirit  of  these  treaties.  The  acts  of  our  govern- 
ment plainly  recognize  the  Cherokee  nation  as  a  state,  and  the 
courts  are  bound  by  those  acts. 

A  question  of  much  more  difficulty  remains.  Do  the  Chero- 
kees constitute  a  foreign  state  in  the  sense  of  the  Constitution  ? 

The  counsel  have  showTi  conclusively  that  they  are  not  a  state 
of  the  union,  and  have  insisted  that  individually  they  are  aliens, 
not  owing  allegiance  to  the  United  States.  An  aggregate  of 
aliens  composing  a  state  must,  they  say,  be  a  foreign  state.  Each 
individual  being  foreign,  the  whole  must  be  foreign. 

This  argument  is  imposing,  but  we  must  examine  it  more 
closely  before  we  yield  to  it.  The  condition  of  the  Indians  in 
relation  to  the  United  States  is  perhaps  unlike  that  of  any  other 
two  people  in  existence.  In  the  general,  nations  not  owing  a 
common  allegiance  are  foreign  to  each  other.  The  term  foreign 
nation  is,  with  strict  propriety,  applicable  by  either  to  the  other. 
But  the  relation  of  the  Indians  to  the  United  States  is  marked  by 
peculiar  and  cardinal  distinctions  which  exist  nowhere  else. 

The  Indian  territory  is  admitted  to  compose  a  part  of  the 
United  States.  In  all  our  maps,  geographical  treatises,  histo- 
ries, and  laws,  it  is  so  considered.  In  all  our  intercourse  uith 
foreign  nations,  in  our  commercial  regulations,  in  any  attempt 


198  DISTRICT    OF   COLUMBIA,    ETC. 

at  intercourse  between  Indians  and  foreign  nations,  they  are 
considered  as  within  the  jurisdictional  Hmits  of  the  United  States, 
subject  to  many  of  those  restraints  which  are  imposed  upon  our 
own  citizens.  They  acknowledge  themselves  in  their  treaties 
to  be  under  the  protection  of  the  United  States;  they  admit  that 
the  United  States  shall  have  the  sole  and  exclusive  right  of  regu- 
lating the  trade  with  them,  and  managing  all  their  affairs  as  they 
think  proper;  and  the  Cherokees  in  particular  were  allowed  by 
the  treaty  of  Hopewell,  which  preceded  the  Constitution,  "  to  send 
a  deputy  of  their  choice,  whenever  they  think  fit,  to  congress." 
Treaties  were  made  with  some  tribes  by  the  state  of  New  York, 
under  a  then  unsettled  construction  of  the  confederation,  by  which 
they  ceded  all  their  lands  to  that  state,  taking  back  a  limited 
grant  to  themselves,  in  which  they  admit  their  dependence. 

Though  the  Indians  are  acknowledged  to  have  an  unquestion- 
able, and,  heretofore,  unquestioned  right  to  the  lands  they  occupy, 
until  that  right  shall  be  extinguished  by  a  voluntary  cession  to 
our  government;  yet  it  may  well  be  doubted  whether  those  tribes 
which  reside  within  the  acknowledged  boundaries  of  the  United 
States  can,  with  strict  accuracy,  be  denominated  foreign  nations. 
They  may,  more  correctly,  perhaps,  be  denominated  domestic 
dependent  nations.  They  occupy  a  territory  to  which  we  assert 
a  title  independent  of  their  will,  which  must  take  effect  in  point 
of  possession  when  their  right  of  possession  ceases.  Meanwhile 
they  are  in  a  state  of  pupilage.  Their  relation  to  the  United 
States  resembles  that  of  a  ward  to  his  guardian. 

They  look  to  our  government  for  protection;  rely  upon  its 
kindness  and  its  power;  appeal  to  it  for  relief  to  their  wants; 
and  address  the  president  as  their  great  father.  They  and  their 
country  are  considered  by  foreign  nations,  as  well  as  by  ourselves, 
as  being  so  completely  under  the  sovereignty  and  dominion  of 
the  United  States,  that  any  attempt  to  acquire  their  lands,  or  to 
form  a  political  connexion  with  them,  would  be  considered  by 
all  as  an  invasion  of  our  territory,  and  an  act  of  hostility. 

These  considerations  go  far  to  support  the  opinion,  that  the 
framers  of  our  Constitution  had  not  the  Indian  tribes  in  view, 
when  they  opened  the  courts  of  the  union  to  controversies  between 
a  state  or  the  citizens  thereof,  and  foreign  states.  .  .  . 

Considerable  aid  is  furnished  by  that  clause  in  the  eighth 
section  of  the  third  article,  which  empowers  congress  to  "  regulate 
commerce  with  foreign  nations,  and  among  the  several  states, 
and  with  the  Indian  tribes." 


CHEROKEE    NATION    V.    STATE    OF   GEORGIA.  199 

In  this  clause  they  are  as  clearly  contradistinguished  by  a 
name  appropriate  to  themselves,  from  foreign  nations,  as  from 
the  several  states  composing  the  union.  They  are  designated 
by  a  distinct  appellation;  and  as  this  appellation  can  be  applied 
to  neither  of  the  others,  neither  can  the  appellation  distinguishing 
either  of  the  others  be  in  fair  construction  applied  to  them.  .  .  . 

The  court  has  bestowed  its  best  attention  on  this  question, 
and,  after  mature  deliberation,  the  majority  is  of  opinion  that 
an  Indian  tribe  or  nation  within  the  United  States  is  not  a  foreign 
state  in  the  sense  of  the  Constitution,  and  cannot  maintain  an 
action  in  the  courts  of  the  United  States. 

A  serious  additional  objection  exists  to  the  jurisdiction  of  the 
court.  Is  the  matter  of  the  bill  the  proper  subject  for  judicial 
inquiry  and  decision  ?  It  seeks  to  restrain  a  state  from  the 
forcil)le  exercise  of  legislative  power  over  a  ncighl)ouring  people, 
asserting  their  independence;  their  right  to  which  the  state 
denies.  On  several  of  the  matters  alleged  in  the  bill,  for  example 
on  the  laws  making  it  criminal  to  exercise  the  usual  powers  of 
self  government  in  their  o\\ti  country  by  the  Cherokee  nation, 
this  court  cannot  interpose;  at  least  in  the  form  in  which  those 
matters  are  presented. 

That  part  of  the  bill  which  respects  the  land  occupied  by  the 
Indians,  and  prays  the  aid  of  the  court  to  protect  their  possession, 
may  be  more  doubtful.  The  mere  question  of  right  might  per- 
haps be  decided  by  this  court  in  a  proper  case  with  proper  parties. 
But  the  court  is  asked  to  do  more  than  decide  on  the  title.  The 
bill  requires  us  to  control  the  legislature  of  Georgia,  and  to  restrain 
the  exertion  of  its  physical  force.  The  propriety  of  such  an 
interposition  by  the  court  may  be  well'  questioned.  It  savours 
too  much  of  the  exercise  of  poUtical  power  to  be  within  the  proper 
province  of  the  judicial  department.  But  the  opinion  on  the  point 
respecting  parties  makes  it  unnecessary  to  decide  this  ques- 
tion. .  .  . 

The  motion  for  an  injunction  is  denied. 

Johnson,  J.  .  .  .  The  argument  is  that  they  were  states; 
and  if  not  states  of  the  union,  must  be  foreign  states.  But  I 
think  it  very  clear  that  the  Constitution  neither  speaks  of  them  as 
states  or  foreign  states,  but  as  just  what  they  were,  Indian  tribes; 
an  anomaly  unknoT\Ti  to  the  books  that  treat  of  states,  and  which 
the  law  of  nations  would  regard  as  nothing  more  than  wandering 
hordes,  held  together  only  by  ties  of  blood  and  habit,  and  having 
neither  laws  or  government,  beyond  what  is  required  in  a  savage 


200  DISTRICT   OF    COLUMBIA,    ETC. 

state.  The  distinction  is  clearly  made  in  that  section  which 
vests  in  congress  power  to  regulate  commerce  between  the  United 
States  with  foreign  nations  and  the  Indian  tribes. 

The  language  must  be  applied  in  one  of  three  senses;  either 
in  that  of  the  law  of  nations,  or  of  the  vernacular  use,  or  that 
of  the  Constitution.  In  the  first,  although  it  means  any  state 
not  subject  to  our  laws,  yet  it  must  be  a  state  and  not  a  hunter 
horde:  in  the  vernacular,  it  would  not  be  applied  to  a  people 
within  our  limits  and  at  our  very  doors;  and  in  the  Constitu- 
tion the  two  epithets  are  used  in  direct  contradistinction.  The 
latter  words  were  unnecessary,  if  the  first  included  the  Indian 
tribes.  There  is  no  ambiguity,  though  taken  literally;  and  if 
there  were,  facts  and  circumstances  altogether  remove  it. 

But  had  I  been  sitting  alone  in  this  cause,  I  should  have  waived 
the  consideration  of  personal  description  altogether;  and  put 
my  rejection  of  this  motion  upon  the  nature  of  the  claim  set  up, 
exclusively. 

I  cannot  entertain  a  doubt  that  it  is  one  of  a  political  char- 
acter altogether,  and  wholly  unfit  for  the  cognizance  of  a  judicial 
tribunal.  .  .  . 

Baldwin,  J.  .  .  .  I  concur  in  the  opinion  of  the  court,  in 
dismissing  the  bill,  but  not  for  the  reasons  assigned.  .  .  . 

The  judicial  power  cannot  divest  the  states  of  rights  of  sover- 
eignty, and  transfer  them  to  the  Indians,  by  decreeing  them  to 
be  a  nation,  or  foreign  state,  pre-existing  and  with  rightful  juris- 
diction and  sovereignty  over  the  territory  they  occupy.  This 
would  reverse  every  principle  on  which  our  government  have 
acted  for  fifty-five  years;  and  force,  by  mere  judicial  power,  upon 
the  other  departments  of  this  government  and  the  states  of  this 
union,  the  recognition  of  the  existence  of  nations  and  states  within 
the  limits  of  both,  possessing  dominion  and  jurisdiction  paramount 
to  the  federal  and  state  constitutions.  .  .  . 

Thompson,  J.,  dissenting.  .  .  . 

Upon  the  whole,  I  am  of  opinion, 

1.  That  the  Cherokees  compose  a  foreign  state  within  the 
sense  and  meaning  of  the  Constitution,  and  constitute  a  com- 
petent party  to  maintain  a  suit  against  the  state  of  Georgia. 

2.  That  the  bill  presents  a  case  for  judicial  consideration, 
arising  under  the  laws  of  the  United  States,  and  treaties  made 
under  their  authority  "wdth  the  Cherokee  nation,  and  which 
laws  and  treaties  have  been,  and  are  threatened  to  be  still  further 


FLEMING   V.    PAGE. 


201 


violated  by  the  laws  of  the  state  of  Georgia  referred  to  in  this 
opinion. 

3.  That  an  injunction  is  a  fit  and  proper  writ  to  be  issued, 
to  prevent  the  further  execution  of  such  laws,  and  ought  there- 
fore to  be  awarded. 

And  I  am  authorised  by  my  brother  Story  to  say,  that  he 
concurs  wnth  me  in  this  opinion.  Motion  denied} 


FLEMING  et  al  v.  PAGE,  Collector. 

Supreme  Court  of  the  United  States.     1850. 

[9  Howard,  603.]  ^ 

This  case  came  up  from  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania,  on  a  certificate  of  division 
in  opinion  between  the  judges  thereof. 

It  was  an  action  brought  by  Fleming  and  :Marshall  against 
Page,  collector  of  the  port  of  Philadelphia,  in  one  of  the  State 
courts  of  Pennsylvania,  in  1847,  to  recover  back  certain  duties 

1  In  The  Cherokee  Tobacco,  11  Wall.  616  (1870),  it  was  held  that  a  statute 
extending  the  revenue  laws  to  tobacco  "  produced  anywhere  within  the 
exterior  boundaries  of  the  United  States,  whether  the  same  shaU  be  within 
a  collection  district  or  not  "  included  tobacco  produced  in  the  Indian  Territory. 

In  United  States  v.  Kagama,  118  U.  S.  375  (1886),  it  was  held  that  Con- 
gress can  give  to  the  federal  courts  jurisdiction  over  an  Indian's  crime  com- 
mitted in  an  Indian  reservation  within  a  State. 

Other  cases  as  to  Indians  are:  Johnson  v.  Mcintosh,  8  WTieat.  543  (1823); 
Worcester  v.  Georgia,  6  Pet.  515  (1832);  Mitchel  v.  United  States,  9  Pet. 
711  (1835);  United  States  v.  Rogers,  4  How.  567  (1846);  FeUows  v.  Black- 
smith, 19  How.  366  (1856);  Leavenworth,  &c.,  R.  Co.  v.  United  States,  92 
U.  S.  733  (1875);  United  States  v.  Forty-three  Gallons,  93  U.  S.  188  (1876). 
Matter  of  HefT,  197  U.  S.  488  (1905) ;    United  States  v.  Wright,  229  U.  S." 

226  (1913).  ,    J.  J  • 

The  statute  of  Mar.  3,  1871,  16  U.  S.  Stats,  at  Large,  566,  embodied  m 
U.  S.  R.  S.,  8.  2079,  enacted  that  hereafter  "  no  Indian  nation  or  tribe  withm 
the  territory  of  the  United  States  shall  be  acknowledged  or  recognized  as  an 
independent  nation,  tribe,  or  power  with  whom  the  United  States  may  con- 
tract by  treaty";  but  the  obUgations  of  existing  treaties  were  expressly  pre- 
served. —  Ed. 

2  The  statement  has  been  abbreviated.  —  Ed. 


202  DISTRICT   OF    COLUMBIA,    ETC. 

on  goods,  wares,  and  merchandise,  imported  into  the  port  of 
Philadelphia  from  Tampico,  in  Mexico,  in  March  and  June  of 
that  year.  The  case  was  afterwards  taken  into  the  Circuit  Court 
of  the  United  States.  The  jury  found  for  the  plaintiffs.  A 
motion  was  made  in  behalf  of  the  United  States  to  set  aside  the 
verdict  and  for  a  new  trial,  the  ground  being  substantially  that 
the  judge  erred  in  charging  the  jury  that  in  1847  Tampico  was 
not  a  foreign  country  within  the  meaning  of  the  act  of  July  30, 1846, 
imposing  duties  on  goods  "  imported  from  foreign  countries." 
The  case  having  been  submitted  on  an  agreed  statement,  the 
judges  of  the  Circuit  Court  certified  a  difference  of  opinion. 

McCall  and  Webster,  for  the  plaintiffs;  and  Johnson,  Attorney 
General,  for  the  defendants. 

Taney,  C.  J.,  deHvered  the  opinion  of  the  court. 
The  question  certified  by  the  Circuit  Court  turns  upon  the 
construction  of  the  act  of  Congress  of  July  30,  1846.  The  duties 
levied  upon  the  cargo  of  the  schooner  Catharine  were  the  duties 
imposed  by  this  law  upon  goods  imported  from  a  foreign  country. 
And  if  at  the  time  of  this  shipment  Tampico  was  not  a  foreign 
port  within  the  meaning  of  the  act  of  Congress,  then  the  duties 
were  illegally  charged,  and,  having  been  paid  under  protest,  the 
plaintiffs  would  be  entitled  to  recover  in  this  action  the  amount 
exacted  by  the  collector.' 

The  port  of  Tampico,  at  which  the  goods  were  shipped,  and 
the  Mexican  State  of  Tamaulipas,  in  which  it  is  situated,  were 
undoubtedly  at  the  time  of  the  shipment  subject  to  the  sover- 
eignty and  dominion  of  the  United  States.  The  Mexican  au- 
thorities had  been  driven  out,  or  had  submitted  to  our  army 
and  navy;  and  the  country  was  in  the  exclusive  and  firm  pos- 
session of  the  United  States,  and  governed  by  its  military  au- 
thorities, acting  under  the  orders  of  the  President.  But  it  does 
not  follow  that  it  was  a  part  of  the  United  States,  or  that  it 
ceased  to  be  a  foreign  country,  in  the  sense  in  which  these  words 
are  used  in  the  acts  of  Congress. 

The  country  in  question  had  been  conquered  in  war.  But  the 
genius  and  character  of  our  institutions  are  peaceful,  and 
the  power  to  declare  war  was  not  conferred  upon  Congress  for 
the  purposes  of  aggression  or  aggrandizement,  but  to  enable  the 
general  government  to  vindicate  by  arms,  if  it  should  become 
necessary,  its  own  rights  and  the  rights  of  its  citizens. 

•A  war,  therefore,  declared  by  Congress,  can  never  be  pre- 
sumed to  be  waged  for  the  purpose  of  conquest  or  the  acqui- 


FLEMING    V.    PAGE.  203 

sition  of  territory;  nor  does  the  law  declaring  the  war  imph- 
an  authority  to  the  President  to  enlarge  the  limits  of  the  United 
States  by  subjugating  the  enemy's  country.  The  United  States, 
it  is  true,  may  extend  its  boundaries  by  conquest  or  treaty,  and 
may  demand  the  cession  of  territory  as  the  condition  of  peace, 
in  order  to  indemnify  its  citizens  for  the  injuries  they  have  suffered, 
or  to  reimburse  the  government  for  the  expenses  of  the  war. 
But  this  can  be  done  only  by  the  treaty-making  power  or  the 
legislative  authority,  and  is  not  a  part  of  the  power  conferred 
upon  the  President  by  the  declaration  of  war.  His  duty  and 
his  power  are  purely  military.  As  commander-in-chief,  he  is 
authorized  to  direct  the  movements  of  the  naval  and  militarj' 
forces  placed  by  law  at  his  command,  and  to  employ  them  in  the 
manner  he  may  deem  most  effectual  to  harass  and  conquer  and 
subdue  the  enemy.  He  may  invade  the  hostile  country,  and 
subject  it  to  the  sovereignty  and  authority  of  the  United  States. 
But  his  conquests  do  not  enlarge  the  boundaries  of  this  Union, 
nor  extend  the  operation  of  our  institutions  and  laws  beyond  the 
limits  before  assigned  to  them  by  the  legislative  power. 

It  is  true,  that,  when  Tampico  had  been  captured,  and  the 
State  of  Tamaulipas  suljjugated,  other  nations  were  bound  to 
regard  the  country,  while  our  possession  continued,  as  the  ter- 
ritory of  the  United  States,  and  to  respect  it  as  such.  For,  by 
the  laws  and  usages  of  nations,  conquest  is  a  valid  title,  while 
the  victor  maintains  the  exclusive  possession  of  the  conquered 
country.  The  citizens  of  no  other  nation,  therefore,  had  a 
right  to  enter  it  without  the  permission  of  the  American  authori- 
ties, nor  to  hold  intercourse  with  its  inhabitants,  nor  to  trade 
with  them.  As  regarded  all  other  nations,  it  was  a  part  of  the 
United  States,  and  belonged  to  them  as  exclusively  as  the  ter- 
ritory included  in  our  established  boundaries. 

But  yet  it  was  not  a  part  of  this  Union.  For  every  nation 
which  acquires  territory  by  treaty  or  conquest  holds  it  accord- 
ing to  its  own  institutions  and  laws.  And  the  relation  in  which 
the  port  of  Tampico  stood  to  the  United  States  while  it  was 
occupied  by  their  arms  did  not  depend  upon  the  laws  of  nations, 
but  upon  our  own  Constitution  and  acts  of  Congress.  The 
power  of  the  President  under  which  Tampico  and  the  State  of 
Tamaulipas  were  conquered  and  held  in  subjection  was  simply 
that  of  a  military  commander  prosecuting  a  w^ar  waged  against 
a  public  enemy  by  the  authority  of  his  government.  And  the 
country  from   which   these  goods   were  imported   was  invaded 


20-1  .  DISTRICT    OF    COLUMBIA,    ETC. 

and  subdued,  and  occupied  as  the  territory  of  a  foreign  hostile 
nation,  as  a  portion  of  jNlexico,  and  was  held  in  possession  in  order 
to  distress  and  harass  the  enemy.  While  it  was  occupied  by  our 
troops,  they  were  in  an  enemy's  country,  and  not  in  their  own; 
the  inhabitants  were  still  foreigners  and  enemies,  and  owed  to 
the  United  States  nothing  more  than  the  submission  and  obedi- 
ence, sometimes  called  temporary  allegiance,  which  is  due  from 
a  conquered  enemy,  when  he  surrenders  to  a  force  which  he  is 
unable  to  resist.  But  the  boundaries  of  the  United  States,  as 
they  existed  when  war  was  declared  against  Mexico,  w^re  not 
extended  by  the  conquest;  nor  could  they  be  regulated  by  the 
varying  incidents  of  war,  and  be  enlarged  or  diminished  as  the 
armies  on  either  side  advanced  or  retreated.  They  remained 
unchanged.  And  every  place  which  was  out  of  the  limits  of  the 
United  States,  as  previously  established  by  the  political  authori- 
ties of  the  government,  was  still  foreign;  nor  did  our  laws  extend 
over  it.  Tampico  was,  therefore,  a  foreign  port  when  this  ship- 
ment was  made. 

Again,  there  was  no  act  of  Congress  establishing  a  custom- 
house at  Tampico,  nor  authorizing  the  appointment  of  a  col- 
lector; and,  consequently,  there  was  no  officer  of  the  United 
States  authorized  by  law  to  grant  the  clearance  and  authenti- 
cate the  coasting  manifest  of  the  cargo,  in  the  manner  directed 
by  law,  where  the  voyage  is  from  one  port  of  the  United  States 
to  another.  The  person  who  acted  in  the  character  of  collector 
in  this  instance,  acted  as  such  under  the  authority  of  the  mili- 
tary commander,  and  in  obedience  to  his  orders;  and  the  duties 
he  exacted,  and  the  regulations  he  adopted,  were  not  those  pre- 
scribed by  law,  but  by  the  President  in  his  character  of  commander- 
in-chief.  The  custom-house  was  established  in  an  enemy's 
country,  as  one  of  the  weapons  of  war.  It  was  established,  not 
for  the  purpose  of  giving  to  the  people  of  Tamaulipas  the  benefits 
of  commerce  'vsith  the  United  States,  or  with  other  countries,  but 
as  a  measure  of  hostility,  and  as  a  part  of  the  military  operations 
in  Mexico;  it  was  a  mode  of  exacting  contributions  from  the 
enemy  to  support  our  army,  and  intended  also  to  cripple  the 
resources  of  JNlexico,  and  make  it  feel  the  evils  and  burdens  of 
the  war.  The  duties  required  to  be  paid  were  regulated  -u-ith 
this  view,  and  were  nothing  more  than  contributions  levied  upon 
the  enemy,  which  the  usages  of  war  justify  when  an  army  is 
operating  in  the  enemy's  country.  The  permit  and  coasting 
manifest  granted  bj^  an  officer  thus  appointed,  and  thus  controlled 


FLEMING   V.    PAGE,  205 

by  military  authority,  could  not  be  recognized  in  any  port  of  the 
United  States,  as  the  documents  required  by  the  act  of  Congress 
when  the  vessel  is  engaged  in  the  coasting  trade,  nor  could  they 
exempt  the  cargo  from  the  payment  of  duties. 

This  construction  of  the  revenue  laws  has  been  uniformly 
given  by  the  administrative  department  of  the  government  in 
every  case  that  has  come  before  it.  And  it  has,  indeed,  been 
given  in  cases  where  there  appears  to  have  been  stronger  ground 
for  regarding  the  place  of  shipment  as  a  domestic  port.  For 
after  Florida  had  been  ceded  to  the  United  States,  and  the  forces 
of  the  United  States  had  taken  possession  of  Pensacola,  it  was 
decided  by  the  Treasury  Department,  that  goods  imported  from 
Pensacola  before  an  act  of  Congress  was  passed  erecting  it  into 
a  collection  district,  and  authorizing  the  appointment  of  a  col- 
lector, were  liable  to  duty.  That  is,  that  although  Florida  had, 
by  cession,  actually  become  a  part  of  the  United  States,  and  was 
in  our  possession,  yet,  under  our  revenue  laws  its  ports  must  be 
regarded  as  foreign  until  they  were  established  as  domestic,  by 
act  of  Congress;  and  it  appears  that  this  decision  was  sanctioned 
at  the  time  by  the  Attorney-General  of  the  United  States,  the 
law  officer  of  the  goverrmient.  And  although  not  so  directly 
applicable  to  the  case  before  us,  yet  the  decisions  of  the  Treasury 
Department  in  relation  to  Amelia  Island,  and  certain  ports  in 
Louisiana,  after  that  province,  had  been  ceded  to  the  United 
States,  were  both  made  upon  the  same  grounds.  And  in  the 
latter  case,  after  a  custom-house  had  been  established  by  law 
at  New  Orleans,  the  collector  at  that  place  was  instructed  to 
regard  as  foreign  ports  Baton  Rouge  arid  other  settlements  still 
in  the  possession  of  Spain,  whether  on  the  Mississippi,  Iberville, 
or  the  sea-coast.  The  Department  in  no  instance  that  we  are 
aware  of,  since  the  establishment  of  the  goverrmient,  has  ever 
recognized  a  place  in  a  newly  acquired  country  as  a  domestic 
port,  from  which  the  coasting  trade  might  be  carried  on,  unless 
it  had  been  previously  made  so  by  act  of  Congress. 

The  principle  thus  adopted  and  acted  upon  by  the  executive 
department  of  the  government  has  been  sanctioned  by  the  de- 
cisions in  this  court  and  the  Circuit  Courts  whenever  the  ques- 
tion came  before  them.  We  do  not  propose  to  comment  upon 
the  different  cases  cited  in  the  argument.  It  is  sufficient  to  say, 
that  there  is  no  discrepancy  between  them.  And  all  of  them, 
so  far  as  they  apply,  maintain,  that  under  our  revenue  laws 
every  port  is  regarded  as  a  foreign  one,  unless  the  custom-house 


206  DISTRICT   OF    COLUMBIA,    ETC. 

from  which  the  vessel  clears  is  within  a  collection  district  estab- 
lished by  act  of  Congress,  and  the  officers  granting  the  clearance 
exercise  their  functions  under  the  authority  and  control  of  the 
laws  of  the  United  States. 

In  the  view  we  have  taken  of  this  question,  it  is  unnecessary 
to  notice  particularly  the  passages  from  eminent  writers  on  the 
laws  of  nations  which  were  brought  forward  in  the  argument. 
They  speak  altogether  pf  the  rights  which  a  sovereign  acquires, 
and  the  powers  he  may  exercise  in  a  conquered  country,  and 
they  do  not  bear  upon  the  question  we  are  considering.  For 
in  this  country  the  sovereignty  of  the  United  States  resides  in 
the  people  of  the  several  States,  and  they  act  through  their 
representatives,  according  to  the  delegation  and  distribution 
of  powers  contained  in  the  Constitution.  And  the  constituted 
authorities  to  whom  the  power  of  making  war  and  concluding 
peace  is  confided,  and  of  determining  whether  a  conquered  country 
shall  be  permanently  retained  or  not,  neither  claimed  nor  exer- 
cised any  rights  or  powers  in  relation  to  the  territory  in  question 
but  the  rights  of  war.  After  it  was  subdued,  it  was  uniformly 
treated  as  an  enemy's  country,  and  restored  to  the  possession 
of  the  Mexican  authorities  when  peace  was  concluded.  And 
certainly  its  subjugation  did  not  compel  the  United  States,  while 
they  held  it,  to  regard  it  as  a  part  of  their  dominions,  nor 
to  give  to  it  any  form  of  civil  government,  nor  to  extend  to  it 
our  laws. 

Neither  is  it  necessary  to  examine  the  English  decisions  which 
have  been  referred  to  by  counsel.  It  is  true  that  most  of  the 
States  have  adopted  the  principles  of  English  jurisprudence, 
so  far  as  it  concerns  private  and  individual  rights.  And  when 
such  rights  are  in  question,  we  habitually  refer  to  the  English 
decisions,  not  only  with  respect,  but  in  many  cases  as  authorita- 
tive. But  in  the  distribution  of  political  power  between  the 
great  departments  of  government,  there  is  such  a  wide  difference 
between  the  power  conferred  on  the  President  of  the  United 
States,  and  the  authority  and  sovereignty  which  belong  to  the 
English  crown,  that  it  would  be  altogether  unsafe  to  reason  from 
any  supposed  resemblance  between  them,  either  as  regards  con- 
quest in  war,  or  any  other  subject  where  the  rights  and  powers  of 
the  executive  arm  of  the  government  are  brought  into  question. 
Our  own  Constitution  and  form  of  government  must  be  our  only 
guide.     And  we  are  entirely  satisfied  that,  under  the  Constitution 


NATIONAL   B.\XK    I'.    COUNTY   OF   YANKTON.  207 

and  laws  of  the  United  States,  Tampico  was  a  foreign  port,  ^^ithin 
the  meaning  of  the  act  of  1&46,  when  these  goods  were  shipped, 
and  that  the  cargoes  were  hable  to  the  duty  charged  upon  them. 
And  we  shall  certify  accordingly  to  the  Circuit  Court. 
McLean,  J.,  dissented. 


NATIONAL  BANK  v.  COL^TY  OF  YANKTON. 
Supreme  Court  of  the  United  States.     1879. 

[101  United  Slates,  129.]  * 

Error  to  the  Supreme  Court  of  Dakota  Territory. 

The  First  National  Bank  of  Brunswick,  Maine,  brought  action 
in  the  District  Court  of  the  Territory  to  recover  interest  on  bonds 
issued  by  the   defendant  county.      The  defense  w^as  that  there 
was  no  law  authorizing  the  bonds.      By  acts  of  Congress  it  had 
been  provided  that  no  one  session  of  the  legislative  assembly  of 
Dakota  should  exceed  forty  days  and  that  the  sessions  of  all 
territorial  legislative  assem])lies  should  be  biennial.     The  members 
of  the  legislative  assembly  met  on  December  5,  1870,  and  con- 
tinued in  session  on  all  days,  except  Sundays,  until  adjournment 
on  Januar>'  13,   1871.     The  journal  called  the  day  of  adjourn- 
ment the  fortieth  day  of  the  session,  although  it  was  only  the 
thirty-fifth  day  of  transacting  business.     At  the  call  of  the  acting 
governor  the  legislature  again  assembled  on  April  18,  1871,  and 
passed  an  act  to  enable  counties  to  vote  aid  to  any  railroad. 
On  September  2,    1871,   the  electors  of    the  defendant  county 
voted  under  this  act  to  give  to  the  Dakota  Southern  Railroad 
Company,  $200,000  in  bonds  of  the  county.      On  May  27,  1872, 
an  act  of  Congress  went  into  effect,  containing  these  provisions: 
"  That  the  act  passed  by  the  legislative  assembly  .  .  .  be  .  .  . 
disapproved  and  annulled,  except  in  so  far  as  herein  otherwise 
provided.     But  the  passage  of  this  act  shall  not  invalidate  .  .  . 
the  organization  of  the  .  .  .  Dakota  Southern  Railroad  •  •  •  or 
any  vote  that  has  been  or  may  be  given  by  the  counties  of  Union, 
Clay,  Yankton,  and  Bon  Homme,  .  .  .  granting  aid  to  said  rail- 
1  A  statement  has  been  based  upon  facts  given  in  the  opinion.  —  Ed. 


208  DISTRICT   OF    COLUMBIA,    ETC. 

road,  ...  or  anything  authorized  by  and  that  may  have  been 
done  in  pursuance  of  .  .  .  the  aforesaid  act  .  .  .  towards  the  con- 
struction ...  of  said  railroad  .  .  . ;  and  the  provisions  of  the  act 
...  so  far  as  the  same  authorize  .  .  .  any  vote  of  aid  ...  to  said 
company  ...  are  hereby  declared  to  be  and  remain  in  full  force, 
but  no  further."  After  the  passage  of  this  last  act,  the  bonds 
voted  were  delivered  to  the  railroad  company  in  accordance  with 
the  conditions  prescribed. 

In  the  District  Court  of  the  Territory  judgment  was  rendered 
for  the  defendant.  This  judgment  was  affirmed  by  the  Supreme 
Court  of  the  Territory.  Thereupon  the  bank  brought  the  case 
to  the  Supreme  Court  of  the  United  States  by  writ  of  error. 

S.  W.  Packard  and  James  Grant,  for  the  plaintiff  in  error;  and 
M.  H.  Carpenter  and  James  Coleman,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

We  do  not  consider  it  necessary  to  decide  whether  the  gov- 
ernor of  Dakota  had  authority  to  call  an  extra  session  of  the 
legislative  assembly,  nor  whether  a  law  passed  at  such  a  session 
or  after  the  limited  term  of  forty  days  had  expired  would  be 
vaKd,  because,  as  we  think,  the  act  of  May  27,  1872,  is  equiva- 
lent to  a  direct  grant  of  power  by  Congress  to  the  county  to 
issue  the  bonds  in  dispute.  It  is  certainly  now  too  late  to  doubt 
the  power  of  Congress  to  govern  the  Territories.  There  have 
been  some  differences  of  opinion  as  to  the  particular  clause  of 
the  Constitution  from  which  the  power  is  derived,  but  that  it 
exists  has  always  been  conceded.  The  act  to  adapt  the  ordinance 
to  provide  for  the  government  of  the  Territory  northwest  of  the 
river  Ohio  to  the  requirements  of  the  Constitution  (1  Stat.  50) 
is  chap.  8  of  the  first  session  of  the  first  Congress,  and  the  ordi- 
nance itself  was  in  force  under  the  confederation  when  the  Con- 
stitution went  into  effect.  All  territory  within  the  jurisdiction 
of  the  United  States  not  included  in  any  State  must  necessarily 
be  governed  by  or  under  the  authority  of  Congress.  The  Terri- 
tories are  but  political  sub-divisions  of  the  outlying  dominion  of 
the  United  States.  Their  relation  to  the  general  government  is 
much  the  same  as  that  which  counties  bear  to  the  respective 
States,  and  Congress  may  legislate  for  them  as  a  State  does  for 
its  municipal  organizations.  The  organic  law  of  a  Territory 
takes  the  place  of  a  constitution  as  the  fundamental  law  of  the 
local  government.  It  is  obligatory  on  and  binds  the  territorial 
authorities;  but  Congress  is  supreme,  and  for  the  purposes  of 
this  department  of  its  governmental  authority  has  all  the  powers 


NATIONAL    BANK    V.    COUNTY   OF   YANKTON.  209 

of  the  people  of  the  ^United  States,  except  such  as  have  been 
expressly  or  by  implication  reserved  in  the  prohibitions  of  the 
Constitution. 

In  the  organic  act  of  Dakota  there  was  nob  an  express  reser- 
vation of  power  in  Congress  to  amend  the  acts  of  the  territorial 
legislature,  nor  was  it  necessary.  Such  a  power  is  an  incident 
of  sovereignty,  and  continues  until  granted  away.  Congress 
may  not  only  abrogate  laws  of  the  territorial  legislatures,  but  it 
may  itself  legislate  directly  for  the  local  government.  It  may 
make  a  void  act  of  the  territorial  legislature  valid,  and  a  vahd 
act  void.  In  other  words,  it  has  full  and  complete  legislative 
authority  over  the  people  of  the  Territories  and  all  the  depart- 
ments of  the  territorial  governments.  It  may  do  for  the  Terri- 
tories what  the  people,  under  the  Constitution  of  the  United  States, 
may  do  for  the  States. 

Turning,  then,  to  the  particular  act  of  Congress  now  under 
consideration,  we  find  that  the  attention  of  that  body  was  in 
some  way  brought  to  the  fact  that  the  legislative  assembly  of 
Dakota  had,  on  the  21st  of  April,  1871,  passed  an  act  to  enable 
organized  counties  and  townships  to  vote*  aid  to  raih-oads.  In 
addition  to  this,  it  was  known  that  the  Dakota  Southern  Rail- 
road Company  had  been  organized  as  a  corporation  under  cer- 
tain acts  of  the  territorial  legislative  assembly,  and  that  votes 
had  been  taken  under  the  aid  act  in  some  of  the  counties  and 
to\\'nships  granting  aid  to  or  authorizing  subscriptions  of  stock 
in  this  corporation.  It  is  clear  that  Congress  disapproved  the 
policy  of  the  aid  act,  and  was  unwilling  to  have  it  go  into  gen- 
eral operation;  but  to  the  extent  it  could  be  made  available 
for  the  construction  and  completion  of  the  main  stem  of  the 
Dakota  Southern  Railroad  the  contrary  is  chstinctly  manifested. 
The  act  as  a  whole  was  "  disapproved  and  annulled,"  but  in 
substance  re-enacted  by  Congress  "  for  the  purpose  of  vaHdating 
any  vote  of  aid  or  subscription  "  to  that  company,  but  "  for  no 
other  purpose  whatever."  A  careful  examination  of  the  statute 
leaves  no  doubt  in  our  minds  on  this  subject.  To  make  it  sure 
that  the  organization  of  the  company  was  complete,  the  "  Da- 
kota Southern  Railroad  Company,  as  organized  under  and  in 
conformity  to  the  acts  of  the  legislative  assembly  of  said  Terri- 
tory," was  "  recognized  and  declared  to  be  a  legal  and  valid 
corporation."  It  is  then  in  terms  enacted  that  the  provisions 
of  the  aid  act,  "  so  far  as  the  same  authorize,  and  for  the  pur- 
pose of  validating  any  vote  of  aid  and  subscriptions  to  said 


210  DISTRICT   OF   COLUMBIA,    ETC. 

company,  for  the  construction,  completion,  and  equipment  of 
the  main  stem  of  said  railroad,  ...  are  hereby  declared  to 
be  and  remain  in  full  force."  And  again:  "that  said  Dakota 
Southern  Railroad  Company  shall  issue  to  the  respective  coun- 
ties and  townships  voting  aid  to  said  railroad,  paid-up  certifi- 
cates of  stock  in  the  same  in  amounts  equal  to  the  sums  voted 
by  the  respective  counties  and  townships."  In  the  light  of 
these- distinct  and  positive  declarations  and  enactments  of  Con- 
gress, it  is  impossible  to  bring  our  minds  to  any  other  conclu- 
sion than  that,  when  the  bonds  now  in  controversy  were  put 
out,  there  existed  full  and  complete  legislative  authority  to 
bind  the  people  of  the  county  for  their  payment.  No  com- 
plaint is  made  of  any  irregularity  in  the  proceedings  under  the 
law.  The  question  in  the  case  is  one  of  power  only.  As  we 
think,  the  vote  of  the  people  of  the  county  was  "  validated  " 
by  Congress,  and  express  authority  given  to  issue  the  bonds  for 
the  purposes  originally  intended.  The  only  change  which  Con- 
gress saw  fit  to  make  was  to  require  the  company  to  give  stock 
in  return  for  the  donation  as  voted. 

The  judgment  of  thfe  Supreme  Court  of  the  Territory  will  be 
reversed,  and  the  cause  remanded  with  instructions  to  reverse 
the  judgment  of  the  District  Court  and  direct  a  judgment  for  the 
plaintiff  on  the  facts  found  for  such  amount  as  shall  appear  to 
be  due  on  the  coupons  sued  for;  and  it  is  So  ordered.^ 


CALLAN  V.  WILSON. 

Supreme  Court  of  the  United  States.     1888. 

[127  United  States,  540.] 

Appeal  from  the  Supreme  Court  of  the  District  of  Colum- 
bia. .  .  . 

This  was  an  appeal  from  a  judgment  refusing,  upon  writ  of 
habeas  corpus,  to  discharge  the  appellant  from  the  custody  of 
the  appellee  as  Marshal  of  the  District  of  Columbia.  It  ap- 
pears that  by  an  information  filed  by  the  United  States  in  the 

1  See  Mormon  Church  v.  United  States,  136  U.  S.  1  (1890).  —  Ed. 


CALLAN   V.    WILSON.  211 

Police  Court  of  the  District,  the  petitioner,  vAih  others,  was 
charged  wdth  the  crime  of  conspiracj^,  and  ha\ang  been  found 
guilty  by  the  court  was  sentenced  to  pay  a  fine  of  twenty-five 
dollars,  and  upon  default  in  its  paj^ment  to  suffer  imprison- 
ment in  jail  for  the  period  of  thirty  days.  He  perfected  an  appeal 
to  the  Supreme  Court  of  the  District,  but  having  subsequently 
withdrawm  it,  and  ha\dng  refused  to  pay  the  fine  imposed  upon 
him,  he  was  committed  to  the  custody  of  the  Marshal,  to  the 
end  that  the  sentence  might  be  carried  into  effect. 

The  contention  of  the  petitioner  was  that  he  is  restrained  of 
his  liberty  in  violation  of  the  Constitution.  .  .  . 

The  defendants  .  .  .  united  in  requesting  a  trial  by  jury. 
That  request  was  denied,  and  a  trial  was  had  before  the  court, 
without  the  intervention  of  a  jury.  .  .  . 

Ralston,  for  appellant;  Moore  with  him  on  the  brief;  and 
Maury,  Assistant  Attorney  General,  for  appellee. 
Harlan,  J.,  .  .  .  delivered  the  opinion  of  the  court. 
It  is  contended  by  the  appellant  that  the  Constitution  of  the 
United  States  secured  to  him  the  right  to  be  tried  by  a  jury, 
and,  that  right  having  been  denied,  the  police  court  was  with- 
out jurisdiction  to  impose  a  fine  upon  him,  or  to  order  him  to 
be  imprisoned  until  such  fine  was  paid.  This  precise  question 
is  now,  for  the  first  time,  presented  for  determination  by  this 
court.  If  the  appellant's  position  be  sustained,  it  will  follow 
that  the  statute  (Rev.  Stat.  Dist.  Col.,  §  1064),  dispensing  with 
a  petit  jury,  in  prosecutions  by  information  in  the  police  court, 
is  inapplicable  to  cases  like  the  present  one. 

The  third  article  of  the  Constitution  provides  that  "  the  trial 
of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury, 
and  such  trial  shall  be  held  in  the  State  where  the  said  crimes 
shall  have  been  committed;  but  when  not  committed  -wdthin 
any  State,  the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed."  The  Fifth  Amendment  pro- 
vides that  no  person  shall  "  be  deprived  of  life,  liberty,  or  property, 
wdthout  due  process  of  law."  By  the  Sixth  Amendment  it  is 
declared  that  "  in  all  criminal  prosecutions  the  accused  shall 
enjoy  the  right  to  a  speedy  and  pubhc  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accu- 
sation; to  be  confronted  with  the  witnesses  against  him;  to  have 


212  DISTRICT   OF    COLUMBIA,    ETC. 

compulsory  process  for  obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  defence." 

The  contention  of  the  appellant  is,  that  the  offence  with  which 
he  is  charged  is  a  "  crime  "  within  the  meaning  of  the  third  article 
of  the  Constitution,  and  that  he  was  entitled  to  be  tried  by  a 
jury;  that  his  trial  by  the  police  court,  without  a  jury,  was  not 
"  due  process  of  law  "  within  the  meaning  of  the  Fifth  Amend- 
ment; and  that,  in  any  event,  the  prosecution  against  him  was  a 
"  criminal  prosecution,"  in  which  he  was  entitled,  by  the  Sixth 
Amendment,  to  a  speedy  and  public  trial  by  an  impartial  jury. 

The  contention  of  the  government  is,  that  the  Constitution 
does  not  require  that  the  right  of  trial  by  jury  shall  be  secured 
to  the  people  of  the  District  of  Columbia;  that  the  original 
provision,  that  when  a  crime  was  not  committed  within  any 
State  "  the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed,"  had,  probably,  reference  only 
to  offences  committed  on  the  high  seas;  that,  in  adopting  the 
Sixth  Amendment,  the  people  of  the  States  were  solicitous  about 
trial  by  jury  in  the  States  and  nowhere  else,  leaving  it  entirely 
to  Congress  to  declare  in  what  way  persons  should  be  tried  who 
might  be  accused  of  crime  on  the  high  seas,  and  in  the  District 
of  Columbia  and  in  places  to  be  thereafter  ceded  for  the  pur- 
poses, respectively,  of  a  seat  of  government,  forts,  magazines, 
arsenals,  and  dock-yards;  and,  consequently,  that  that  Amend- 
ment should  be  deemed  to  have  superseded  so  much  of  the  third 
article  of  the  Constitution  as  relates  to  the  trial  of  crimes  by  a 
jury. 

Upon  a  careful  examination  of  this  position  we  are  of  opinion 
that  it  cannot  be  sustained  without  violence  to  the  letter  and 
spirit  of  the  Constitution. 

The  third  article  of  the  Constitution  provides  for  a  jury  in 
the  trial  of  "  all  crimes,  except  in  cases  of  impeachment."  The 
word  "  crime,"  in  its  more  extended  sense,  comprehends  every 
violation  of  public  law;  in  a  limited  sense,  it  embraces  offences 
of  a  serious  or  atrocious  character.  In  our  opinion,  the  provision 
is  to  be  interpreted  in  the  light  of  the  principles  which,  at  common 
law,  determined  whether  the  accused,  in  a  given  class  of  cases, 
was  entitled  to  be  tried  by  a  jury.  It  is  not  to  be  construed  as 
relating  only  to  felonies,  or  offences  punishable  by  confinement 
in  the  penitentiary.  It  embraces  as  well  some  classes  of  misde- 
meanors, the  punishment  of  which  involves  or  may  involve  the 
deprivation  of  the  liberty  of  the  citizen.      It  would  be  a  narrow 


CALLAN    V.    WILSON.  213 

construction  of  the  Constitution  to  hold  that  no  prosecution  for 
a  misdemeanor  is  a  prosecution  f or  a  "  crime  "  A\ithin  the  meaning 
of  the  third  article,  or  a  "  criminal  prosecution "  within  the 
meaning  of  the  Sixth  Amendment.  And  we  do  not  think  that 
the  amenchnent  was  intended  to  supplant  that  part  of  the  third 
article  which  relates  to  trial  by  jur3\  There  is  no  necessary  con- 
flict between  them.  IMr.  Justice  Story  says  that  the  amendment, 
"  in  declaring  that  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  or  district 
wherein  the  crime  shall  have  been  committed  (which  district  shall 
be  pre\'iously  ascertained  by  law),  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  and  to  be  confronted  with 
the  witnesses  against  him,  does  but  follow  out  the  established 
course  of  the  conmaon  law  in  all  trials  for  crimes."  Story  on 
the  Constitution,  §  1791.  And  as  the  guarantee  of  a  trial  by 
jury,  in  the  third  article,  imphed  a  trial  in  that  mode  and  accord- 
ing to  the  settled  rules  of  the  common  law,  the  enumeration,  in 
the  Sixth  Amendment,  of  the  rights  of  the  accused  in  criminal 
prosecutions,  is  to  be  taken  as  a  declaration  of  what  those  rules 
were,  and  is  to  be  referred  to  the  anxiety  of  the  people  of  the 
States  to  have  in  the  supreme  law  of  the  land,  and  so  far  as  the 
agencies  of  the  General  Government  were  concerned,  a  full  and 
distinct  recognition  of  those  rules,  as  involving  the  fundamental 
rights  of  life,  liberty,  and  property.  This  recognition  was  de- 
manded and  secured  for  the  benefit  of  all  the  people  of  the  United 
States,  as  well  those  permanently  or  temporarily  residing  in 
the  District  of  Columbia,  as  those  residing  or  being  in  the  several 
States.  There  is  nothing  in  the  history  of  the  Constitution  or  of 
the  original  amendments  to  justify  the  assertion  that  the  people 
of  this  District  may  be  lawfully  deprived  of  the  benefit  of  any 
of  the  constitutional  guarantees  of  life,  Uberty,  and  property  — 
especially  of  the  pri\'ilege  of  trial  by  jury  in  criminal  cases.  In 
the  Draft  of  a  Constitution  reported  by  the  Committee  of  Five 
on  the  6th  of  August,  1787,  in  the  convention  which  framed  the 
Constitution,  the  4th  section  of  article  XI  read  that  "  the  trial 
of  all  cruninal  offences  (except  in  cases  of  impeachment)  shall 
be  in  the  States  where  they  shall  be  committed;  and  shall  be 
by  jury."  1  Elliott's  Deb.,  2d  ed.,  229.  But  that  article  was, 
by  unanimous  vote,  amended  so  as  to  read:  "The  trial  of  all 
crimes  (except  in  cases  of  impeachment)  shall  be  by  jury;  and 
such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall 
have  been  committed;  but  when  not  committed  within  any  State, 


214  DISTRICT   OF   COLUMBIA,    ETC. 

then  the  trial  shall  be  at  such  place  or  places  as  the  legislature 
may  direct."  Id.  270.  The  object  of  thus  amending  the  section, 
Mr.  Madison  says,  was  "  to  provide  for  trial  by  jury  of  offences 
committed  out  of  any  State."  3  Madison  Papers,  144.  In 
Reynolds  v.  United  States,  98  U.  S.  145,  154,  it  was  taken  for 
granted  that  the  Sixth  Amendment  of  the  Constitution  secured 
to  the  people  of  the  Territories  the  right  of  trial  by  jury  in  criminal 
prosecutions;  and  it  had  been  previously  held  in  Webster  v. 
Reid,  11  How.  437,  460,  that  the  Seventh  Amendment  secured 
to  them  a  like  right  in  civil  actions  at  common  law.  We  can- 
not think  that  the  people  of  this  District  have,  in  that  regard, 
less  rights  than  those  accorded  to  the  people  of  the  Territories 
of  the  United  States.  .  .  . 

"Conceding  that  there  is  a  class  of  petty  or  minor  offences,  not 
usually  embraced  in  public  criminal  statutes,  and  not  of  the  class 
or  grade  triable  at  common  law  by  a  jury,  and  which,  if  com- 
mitted in  this  District;  may,  under  the  authority  of  Congress, 
be  tried  by  the  court  and  without  a  jury,  we  are  of  opinion  that 
the  offence  with  which  the  appellant  is  charged  does  not  belong 
to  that  class.  .  .  . 

When,  therefore,  the  appellant  was  brought  before  the  Supreme 
Court  of  the  District,  and  the  fact  was  disclosed  that  he  had  been 
adjudged  guilty  of  the  crime  of  conspiracy  charged  in  the  informa- 
tion in  this  case,  without  ever  having  been  tried  by  a  jury,  he 
should  have  been  restored  to  his  liberty. 
For  the  reasons  stated, 

The  judgment  is  reversed,  and  the  cause  remanded  with  direc- 
tions to  discharge  the  appellant  from  custody} 

N 

»  See  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1  (1899).  —  Ed. 


GEOFROY   V.    RIGGS.  215 

GEOFROY   V.   RIGGS. 

Supreme  Court  of  the  United  States.     1890. 

[133  United  States,  258.]  i 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia. 
In  partition  proceedings  prajdng  the  sale  of    certain  land  in 
the  District  of   Columbia,  the  bill  of  the  complainants,  citizens 
and  residents  of  France,  set  out  that  their  interest  was  derived 
by  inheritance  from  a  former  o^mer  who  was  a  citizen  of  the 
United  States  and  a  resident  of  the  District  of  Columbia,  and 
who  died  in  1888.      The  defendants  demurred.      The  Supreme 
Court  of  the  District  of  Columbia  sustained  the  demurrer  and 
dismissed  the  bill.     Therefore  this  appeal  was  taken. 
J.  H.  Ashton,  for  appellants;  and  John  Selden,  contra. 
Field,  J.,  .  .  .  dehvered  the  opinion  of  the  court. 
The  question  is:  can  citizens  of  France  take  land  in  the  District 
of  Columbia  by  descent  from  citizens  of  the  United  States  ? 

The  complainants  contend  that  they  inherit  an  estate  in  the 
property  described,  by  force  of  the  stipulation  of  article  7  of 
the  convention  between  the  United  States  and  France,  concluded 
February  23,  1853,  and  the  provisions  of  the  act  of  Congress  of 
March  3,  1887,  to  restrict  the  ownership  of  real  estate  in  the 
Territories  to  American  citizens.  Before  considering  the  effect 
of  this  article  and  of  the  act  of  1887,  a  brief  reference  will  be  had 
to  the  laws  of  Maryland  in  force  on  the  27th  of  February,  1801, 
which  were  on  that  day  declared  by  act  of  Congress  to  be  in  force 
in  the  District  of  Columbia.  The  language  of  the  act  is  "  that 
the  laws  of  the  State  of  Maryland  as  they  now  exist  shall  be  and 
continue  in  force  in  that  part  of  the  said  District  which  was  ceded 
by  that  State  to  the  United  States,  and  by  them  accepted." 
2  Stat.  103,  c.  15,  §  1.  .  .  . 

The  common  law,  unmodified  by  statute  or  treaty,  would  have 
excluded  aliens  from  inheriting  lands  in  the  United  States  from 
a  citizen  thereof.  Its  doctrine  is  that  aliens  have  no  inheri- 
table blood  through  which  a  title  can  be  transferred  by  opera- 
tion of  law.  The  act  of  Maryland  of  1780  modified  that  law 
so  far  as  to  allow  a  subject  of  France  who  had  settled  in  that 
State,  and  given  assurances  of  allegiance  and  attachment  to  it 
as  required  of  citizens,  to  dev-ise  to  French  subjects,  who  for 
that  purpose  were  to  be  deemed  citizens  of  the  State.      Act 

1  The  statement  has  not  been  reprinted.  —  Ed. 


216  DISTEICT   OF   COLUMBIA,   ETC. 

of  March,  1780,  c.  8,  §  5,  1  Dorsey's  Laws  of  Maryland,  158. 
It  also  provided  that  if  the  decedent  died  intestate  his  natural 
kindred,  whether  residing  in  France  or  elsewhere,  should  in- 
herit his  real  estate  in  hke  manner  as  if  such  decedent  and  his 
kindred  were  citizens  of  the  United  States.  It  had  no  bearing, 
however,  upon  the  inheritance  of  a  subject  of  France,  except 
from  a  Frenchman  domiciled  in  the  State.  The  act  of  Maryland 
of  December  19,  1791,  which  provided  in  its  sixth  section  that 
any  foreigner  might,  by  deed  or  will  thereafter  made,  take  and 
hold  lands  within  the  State  in  the  same  manner  as  if  he  were  a 
citizen  thereof,  and  that  the  lands  might  be  convoyed  by  him, 
and  transmitted  to  and  inherited  by  his  heirs  and  relations  as  if 
he  and  they  were  citizens  of  the  State,  did  not  do  away  with  the 
disability  of  foreigners  to  take  real  property  wathin  that  State 
by  inheritance  from  a  citizen  of  the  United  States.  It  was  so 
held  in  effect  in  Spratt  v.  Spratt,  1  Pet.  343;  s.  c.  4  Pet.  393. 

On  the  30th  of  September,  1800,  a  convention  of  peace,  com- 
merce and  navigation  was  concluded  between  France  and  the 
United  States,  the  7th  article  of  which  provided  that  "  the  citi- 
zens and  inhabitants  of  the  United  States  shall  be  at  liberty 
to  dispose  by  testament,  donation  or  otherwise,  of  their  goods, 
movable  and  immovable,  holden  in  the  territory  of  the  French 
Republic  in  Europe,  and  the  citizens  of  the  French  Republic  shall 
have  the  same  liberty  with  regard  to  goods  movable  and  im- 
movable, holden  in  the  territory  of  the  United  States,  in  favor  of 
such  persons  as  they  shall  think  proper.  The  citizens  and  in- 
habitants of  either  of  the  two  countries,  who  shall  be  heirs  of 
goods,  movable  or  immovable,  in  the  other,  shall  be  able  to  suc- 
ceed ah  intestato,  without  being  obliged  to  obtain  letters  of 
naturalization,  and  without  having  the  effect  of  this  provision 
contested  or  impeded  under  any  pretext  whatever."  8  Stat.  182. 
This  article,  by  its  terms,  suspended,  during  the  existence  of 
the  treaty,  the  provisions  of  the  common  law  of  Maryland  and 
of  the  statutes  of  that  State  of  1780  and  of  1791,  so  far  as  they 
prevented  citizens  of  France  from  taking  by  inheritance  from 
citizens  of  the  United  States,  property,  real  or  personal,  situated 
therein. 

That  the  treaty  power  of  the  United  States  extends  to  all 
proper  subjects  of  negotiation  between  our  government  and 
the  governments  of  other  nations,  is  clear.  It  is  also  clear  that 
the  protection  which  should  be  afforded  to  the  citizens  of  one 
country  owning  property  in  another,  and  the  manner  in  which 


GEOFROY   V.    RIGGS.  217 

that  property  may  be  transferred,  devised  or  inherited  are  fitting 
subjects  for  such  negotiation  and  of  regulation  by  mutual  stipula- 
tions between  the  two  countries.  As  commercial  intercourse 
increases  between  different  countries  the  residence  of  citizens  of 
one  country  within  the  territory  of  the  other  naturally  follows 
and  the  removal  of  their  disabihty  from  alienage  to  hold,  transfer 
and  inherit  property  in  such  cases  tends  to  promote  amicable 
relations.  Such  removal  has  been  within  the  present  century 
the  frequent  subject  of  treaty  arrangement.  The  treaty  power, 
as  expressed  in  the -Constitution,  is  in  terms  unlimited  except  by 
those  restraints  which  are  found  in  that  instrument  against  the 
action  of  the  government  or  of  its  departments,  and  those  arising 
from  the  nature  of  the  government  itself  and  of  that  of  the  States, 
It  would  not  be  contended  that  it  extends  so  far  as  to  authorize 
what  the  Constitution  forbids,  or  a  change  in  the  character  of  the 
government  or  in  that  of  one  of  the  States,  or  a  cession  of  any 
portion  of  the  territory  of  the  latter,  without  its  consent.  Fort 
Leavenworth  Railroad  Co.  v.  Lowe,  114  U.  S.  525,  541.  But 
Avith  these  exceptions,  it  is  not  perceived  that  there  is  any  limit 
to  the  questions  which  can  be  adjusted  touching  any  matter 
which  is  properly  the  subject  of  negotiation  with  a  foreign  country. 
Ware  v.  Hylton,  3  Dall.  199;  Chirac  v.  Chirac,  2  Wheat.  259; 
Hauenstein  v.  Lynham,  100  U.  S.  483;  8  Opinions  Attys.  Gen. 
417;  The  People  v.  Gerke,  5  California,  381. 

Article  7  of  the  convention  of  1800  was  in  force  when  the  act 
of  Congress  adopting  the  laws  of  Maryland,  February  27,  1801, 
was  passed.  That  law  adopted  and  continued  in  force  the  law 
of  Maryland  as  it  then  existed.  It  did  not  adopt  the  law  of 
Maryland  as  it  existed  previous  to  the  treaty;  for  that  would 
have  been  in  effect  to  repeal  the  treaty  so  far  as  the  District  of 
Columbia  was  affected.  In  adopting  it  as  it  then  existed,  it 
adopted  the  law  with  its  provisions  suspended  during  the  con- 
tinuance of  the  treaty  so  far  as  they  conflicted  with  it  —  in  other 
words  the  treaty,  being  part  of  the  supreme  law  of  the  land, 
controlled  the  statute  and  common  law  of  Maryland  whenever  it 
differed  from  them.  The  treaty  expired  by  its  own  limitation  in 
eight  years,  pursuant  to  an  article  inserted  by  the  Senate.  8  Stat. 
192.  During  its  continuance  citizens  of  France  could  take  property 
in  the  District  of  Columbia  by  inheritance  from  citizens  of  the 
United  States.  But  after  its  expiration  that  right  was  limited 
as  provided  by  the  statute  and  common  law  of  Maryland,  as 
adopted  by  Congress  on  the  27th  of  February,  1801,  until  the 


218  DISTRICT   OF    COLUMBIA,    ETC. 

convention  between  the  United  States  and  France  was  concluded, 
February  23,  1853.  The  7th  article  of  that  convention  is  as 
follows : 

"  In  all  the  States  of  the  Union,  whose  existing  laws  permit  it, 
so  long  and  to  the  same  extent  as  the  said  laws  shall  remain  in 
force,  Frenchmen  shall  enjoy  the  right  of  possessing  personal 
and  real  property  by  the  same  title  and  in  the  same  manner  as 
the  citizens  of  the  United  States.  They  shall  be  free  to  dispose 
of  it  as  they  may  please,  either  gratuitously  or  for  value  received, 
by  donation,  testament,  or  otherwise,  just  as  those  citizens  them- 
selves; and  in  no  case  shall  they  be  subjected  to  taxes  on  transfer, 
inheritance,  or  any  others  different  from  those  paid  by  the  latter, 
or  to  taxes  which  shall  not  be  equally  imposed. 

"As  to  the  States  of  the  Union,  by  whose  existing  laws  aliens 
are  not  permitted  to  held  real  estate,  the  President  engages  to 
recommend  to  them  the  passage  of  such  laws  as  may  be  necessary 
for  the  purpose  of  conferring  this  right. 

"  In  like  manner,  but  with  the  reservation  of  the  ulterior 
right  of  establishing  reciprocity  in  regard  to  possession  and 
inheritance,  the  government  of  France  accords  to  the  citizens 
of  the  United  States  the  same  rights  within  its  territory  in  re- 
spect to  real  and  personal  property,  and  to  inheritance,  as  are 
enjoyed  there  by  its  own  citizens."      10  Stat.  99G. 

This  article  is  not  happily  drawn.  It  leaves  in  doubt  what 
is  meant  by  "  States  of  the  Union."  Ordinarily  these  terms 
would  be  held  to  apply  to  those  political  communities  exercising 
various  attributes  of  sovereignty  which  compose  the  United 
States,  as  distinguished  from  the  organized  municipalities  known 
as  Territories  and  the  District  of  Columbia.  And  yet  separate 
communities,  with  an  independent  local  government,  are  often 
described  as  states,  though  the  extent  of  their  political  sover- 
eignty be  limited  by  relations  to  a  more  general  government  or 
to  other  countries.  Halleck  on  Int.  Law,  c.  3,  §§  5,  6,  7.  The 
term  is  used  in  general  jurisprudence  and  by  WTiters  on  public 
law  as  denoting  organized  political  societies  with  an  established 
government.  Within  this  definition  the  District  of  Columbia, 
under  the  government  of  the  United  States,  is  as  much  a  State 
as  any  of  those  political  communities  which  compose  the  United 
States.  Were  there  no  other  territory  under  the  government  of 
the  United  States,  it  would  not  be  questioned  that  the  District 
of  Columbia  would  be  a  State  within  the  meaning  of  international 
law;  and  it  is  not  perceived  that  it  is  any  less  a  State  ^dthin  that 


GEOFROY   V.    RIGGS.  219 

meaning  because  other  States  and  other  territory  are  also  under 
the  same  government.  .  .  . 

Aside  from  the  question  in  which  of  these  significations  the 
terms  are  used  in  the  convention  of  1853,  we  think  the  construc- 
tion of  article  7  is  free  from  difficulty.  In  some  States  aliens  were 
permitted  to  hold  real  estate,  but  not  to  take  by  inheritance. 
To  this  right  to  hold  real  estate  in  some  States  reference  is  had 
by  the  words  "  permit  it  "  in  the  first  clause,  and  it  is  alluded 
to  in  the  second  clause  as  not  permitted  in  others.  This  will 
be  manifest  if  we  read  the  second  clause  before  the  first.  This 
construction,  as  well  observed  by  counsel,  gives  consistency  and 
harmony  to  all  the  provisions  of  the  article,  and  comports  with 
its  character  as  an  agreement  intended  to  confer  reciprocal  rights 
on  the  citizens  of  each  country  with  respect  to  property  held  by 
them  within  the  territory  of  the  other.  ...  As  we  read  the  article 
it  declares  that  in  all  the  States  of  the  Union  by  whose  laws  aliens 
are  permitted  to  hold  real  estate,  so  long  as  such  laws  remain 
in  force,  Frenchmen  shall  enjoy  the  right  of  possessing  personal 
and  real  property  by  the  same  title  and  in  the  same  manner  as 
citizens  of  the  United  States.  They  shall  be  free  to  dispose  of 
it  as  they  may  please  —  by  donation,  testament,  or  otherwise  — 
just  as  those  citizens  themselves.  But  as  to  the  States  by  whose 
existing  laws  ahens  are  not  permitted  to  hold  real  estate,  the 
treaty  engages  that  the  President  shall  recommend  to  them 
the  passage  of  such  laws  as  may  be  necessary  for  the  purpose 
of  conferring  that  right. 

In  determining  the  question  in  what  sense  the  terms  "  States 
of  the  Union  "  are  used,  it  is  to  be  borne  in  mind  that  the  laws 
of  the  District  and  of  some  of  the  Territories,  existing  at  the 
time  the  convention  was  concluded  in  1853,  allowed  aliens  to 
hold  real  estate.  If,  therefore,  these  terms  are  held  to  exclude 
those  political  communities,  our  government  is  placed  in  a  very 
inconsistent  position  —  stipulating  that  citizens  of  France  shall 
enjoy  the  right  of  holding,  disposing  of,  and  inheriting,  in  like 
manner  as  citizens  of  the  United  States,  property,  real  and  per- 
sonal, in  those  States  whose  laws  permit  aliens  to  hold  real  estate; 
that  is,  that  in  those  States  citizens  of  France,  in  holding,  dispos- 
ing of,  and  inheriting  properly,  shall  be  free  from  disability  of 
alienage;  and,  in  order  that  they  may  in  like  manner  be  free  from 
such  cUsability  in  those  States  whose  existing  laws  do  not  permit 
aliens  to  hold  real  estate,  engaging  that  the  President  shall  recom- 
mend the  passage  of  laws  conferring  that  right;  while,  at  the  same 


220  DISTRICT   OF   COLUMBIA,    ETC. 

time,  refusing  to  citizens  of  France  holding  property  in  the  Dis- 
trict and  in  some   of   the  Territories,  where   the   power   of    the 
United  States  is  in  tliat  respect  unHmited,  a  hke  release  from  the 
disability  of  alienage,  thus  discriminating  against  them  in  favor 
of  citizens  of  France  holding  property  in  States  having  similar 
legislation.      No  plausible  motive  can  be  assigned  for  such  dis- 
crimination.      A   right   which   the   government   of    the    United 
States  apparently  desires  that  citizens  of  France  should  enjoy 
in  all  the  States,  it  would  hardly  refuse  to  them  in  the  District 
embracing  its  capital,  or  in  any  of  its  OAvn  territorial  dependen- 
cies.    By  the  last  clause  of  the  article  the  government  of  France 
accords  to  the  citizens  of  the  United  States  the  same  rights  within 
its  territory  in  respect  to  real  and  personal  property  and  to  in- 
heritance as  are  enjoyed  there  by  its  own  citizens.      There  is  no 
limitation  as  to  the  territory  of  France  in  which  the  right  of 
inheritance  is  conceded.     And  it  declares  that  this  right  is  given 
in  like  manner  as  the  right  is  given  by  the  government  of  the 
United  States  to  citizens  of  France.      To  ensure  reciprocity  in 
the  terms  of  the  treaty,  it  would  be  necessary  to  hold  that  by 
"  States  of  the  Union  "  is  meant  all  the  political  communities 
exercising  legislative  powers  in  the  country,  embracing  not  only 
those  political  communities  which  constitute  the  United  States, 
but  also  those  communities  which  constitute  the  political  bodies 
known  as  Territories  and  the  District  of  Columbia.      It  is  a 
general  principle  of  construction  with  respect  to  treaties  that 
they  shall  be  liberally  construed,  so  as  to  carry  out  the  apparent 
intention  of  the  parties  to  secure  equality  and  reciprocity  between 
them.       As   they   are    contracts   between   independent   nations, 
in  their  construction  words  are  to  be  taken  in  their  ordinary 
meaning,  as  understood  in  the  public  law  of  nations,  and  not  in 
any  artificial  or  special  sense  impressed  upon  them  by  local  law, 
unless   such   restricted  sense  is  clearly  intended.      And  it  has 
been  held  by  this  court  that  where  a  treaty  admits  of  two  con- 
structions, one  restrictive  of  rights  that  may  be  claimed  under 
it  and  the  other  favorable  to  them,  the  latter  is  to  be  preferred. 
Hauenstein  v.  Lynham,  100  U.  S.  483,  487.     The  stipulation  that 
the  government  of  France  in  like  manner  accords  to  the  citizens 
of  the  United  States  the  same  rights  within  its  territory  in  respect 
to  real  and  personal  property  and  inheritance  as  are  enjoyed 
there  by  its  own  citizens,  indicates  that  that  government  con- 
sidered that  similar  rights  were  extended  to  its  citizens  within 


GEOFROY   V.    RIGGS.  221 

the   territory   of  the   United   States,   whatever   the   designation 
given  to  their  different  pohtical  communities. 

We  are,  therefore,  of  opinion  that  this  is  the  meaning  of  the 
article  in  question  —  that  there  shall  be  reciprocity  in  respect 
to  the  acquisition  and  inheritance  of  property  in  one  country 
by  the  citizens  of  the  other,  that  is,  in  all  pohtical  communities 
in  the  United  States  where  legislation  permits  aliens  to  hold 
real  estate,  the  disability  of  Frenchmen  from  alienage  in  dis- 
posing and  inheriting  property,  real  and  personal,  is  removed, 
and  the  same  right,  of  disposition  and  inheritance  of  property, 
in  France,  is  accorded  to  citizens  of  the  United  States,  as  are 
there  enjoyed  by  its  own  citizens.     This  construction  finds  sup- 
port in  the  first  section  of  the  act  of  March  3d,  1887.      24  Stat. 
476,  c.  340.      That  section  declares  that  it  shall  be  unlawful  for 
any  person  or  persons  not  citizens  of  the  United  States,  or  who 
have  not  declared  their  intention  to  become  citizens,  to  there- 
after acquire,  hold  or  owti  real  estate,  or  any  interest  therein, 
in  any  of  the  Territories  of  the  United  States  or  in  the  District 
of  Columbia,  except  such  as  may  be  acquired  by  inheritance  or 
in  good  faith  in  the  ordinary  course  of  justice  in  the  collection 
of  debts  previously  created.      There  is  here  a  plain  implication 
that  property  in  the  District  of  Columbia  and  in  the  Territories 
may  be  acquired  by  aliens  by  inheritance  under  existing  laws; 
and  no  property  could  be  acquired  by  them  in  the  District  by 
inheritance  except  by  virtue  of  the  law  of  Maryland  as  it  existed 
when  adopted  by  the  United  States  during  the  existence  of  the 
convention  of  1800  or  under  the  7th  article  of  the  convention 
of  1853.      Our  conclusion  is,  that  the  complainants  are  entitled 
to  take  by  inheritance  an  interest  in  the  real  property  in  the 
District  of  Columbia  of  which  their  uncle  died  seized.      The 
decree  of  the  court  below  will,  therefore,  be 

Reversed  and  the  cause  remanded,  with  direction  to  overrule  the 
demurrer  of  the  defendants;  and  it  is  so  ordered. 


222  DISTRICT   OF   COLUMBIA,    ETC. 

In  re  ROSS,  Petitioner. 

Supreme  Court  of  the  United  States.     1891. 
[140  United  States,  453.]  i 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York. 

In  1880  the  American  consular  tribunal  in  Japan  tried  and 
convicted  Ross  for  a  murder  committed  on  an  American  merchant 
vessel  in  the  harbor  of  Yokohama,  and  sentenced  him  to  death. 
In  the  same  year  the  sentence  was  commuted  by  the  President  of 
the  United  States  to  life  imprisonment  in  the  penitentiary  at 
Albany.  In  1890  the  prisoner  applied  for  a  writ  of  habeas  corpus, 
on  the  ground  that  the  procedure  in  the  consular  tribunal  had 
not  included  indictment  and  a  petit  jury.  The  court,  after 
issuing  the  WTit  and  hearing  counsel,  denied  the  prisoner's  motion 
for  a  discharge,  and  remanded  him  to  the  penitentiary.  44  Fed. 
185.     Thereupon  this  appeal  was  taken. 

G.  W.  Kirchwey,  for  appellant;  and  Parker,  Assistant  Attorney 
General,  contra. 

Field,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  Circuit  Court  did  not  refuse  to  discharge  the  petitioner 
upon  any  independent  conclusion  as  to  the  validity  of  the  legis- 
lation of  Congress  establishing  the  consular  tribunal  in  Japan, 
and  the  trial  of  Americans  for  offences  committed  within  the 
territor}?-  of  that  country,  without  the  indictment  of  a  grand 
jury,  and  without  a  trial  by  a  petit  jury,  but  placed  its  decision 
upon  the  long  and  uniform  acquiescence  by  the  executive,  adminis- 
trative and  legislative  departments  of  the  government  in  the 
validity  of  the  legislation.  .  .  . 

The  Circuit  Court  might  have  found  an  additional  ground 
for  not  calling  in  question  the  legislation  of  Congress,  in  the 
uniform  practice  of  civilized  governments  for  centuries  to  pro- 
vide consular  tribunals  in  other  than  Christian  countries,  or  to 
invest  their  consuls  with  judicial  authority,  which  is  the  same 
thing,  for  the  trial  of  their  o\vn  subjects  or  citizens  for  offences 
committed  in  those  countries,  as  well  as  for  the  settlement  of 
civil  disputes  between  them;  and  in  the  uniform  recognition, 
down  to  the  time  of  the  formation  of  our  government,  of  the 
fact  that  the  establishment  of  such  tribunals  was  among  the 

1  The  statement  has  not  been  reprinted.  —  Ed. 


In  re  ross,  petitioner.  223 

most  important  subjects  for  treaty  stipulations.  This  recog- 
nition of  their  importance  has  continued  ever  since,  though 
the  powers  of  those  tribunals  are  now  more  carefully  defined 
than  formerly.     Dainese  v.  Hale,  91  U.  S.  13.  .  .  . 

The  treaty-making  power  vested  in  our  government  extends 
to  all  proper  subjects  of  negotiation  with  foreign  governments. 
It  can,  equally  with  any  of  the  former  or  present  governments 
of  Europe,  make  treaties  providing  for  the  exercise  of  judicial 
authority  in  other  countries  by  its  officers  appointed  to  reside 
therein. 

We  do  not  understand  that  any  question  is  made  by  counsel 
as  to  its  power  in  this  respect.  His  objection  is  to  the  legisla- 
tion by  which  such  treaties  are  carried  out,  contending  that, 
so  far  as  crimes  of  a  felonious  character  are  concerned,  the  same 
protection  and  guarantee  against  an  undue  accusation  or  an 
unfair  trial,  secured  by  the  Constitution  to  citizens  of  the  United 
States  at  home,  should  be  enjoyed  by  them  abroad.  In  none 
of  the  laws  which  have  been  passed  by  Congress  to  give  effect 
to  treaties  of  the  kind  has  there  been  any  attempt  to  require 
indictment  by  a  grand  jury  before  one  can  be  called  upon  to 
answer  for  a  public  offence  of  that  grade  committed  in  those 
countries,  or  to  secure  a  jury  on  the  trial  of  the  offence.  Yet  the 
laws  on  that  subject  have  been  passed  without  objection  to  their 
constitutionaUty.  Indeed,  objection  on  that  ground  was  never 
raised  in  any  quarter,  so  far  as  we  are  informed,  until  a  recent 
period. 

It  is  now,  however,  earnestly  pressed  by  counsel  for  the  peti- 
tioner, but  we  do  not  think  it  tenable.  By  the  Constitution  a 
government  is  ordained  and  established  ''  for  the  United  States 
of  America,"  and  not  for  countries  outside  of  their  Hmits.  The 
guarantees  it  affords  against  accusation  of  capital  or  infamous 
crimes,  except  by  indictment  or  presentment  by  a  grand  jury, 
and  for  an  impartial  trial  by  a  jury  when  thus  accused,  apply 
only  to  citizens  and  others  Avithin  the  United  States,  or  who  are 
brought  there  for  trial  for  alleged  offences  committed  elsewhere, 
and  not  to  residents  or  temporary  sojourners  abroad.  Cook  v. 
United  States,  138  U.  S.  157,  181.  The  Constitution  can  have 
no  operation  in  another  country.  When,  therefore,  the  repre- 
sentatives or  officers  of  our  government  are  permitted  to  exercise 
authority  of  any  kind  in  another  country,  it  must  be  on  such 
conditions  as  the  two  countries  may  agree,  the  laws  of  neither  one 
being  obligatory  upon  the  other.     The  deck  of  a  private  American 


224  DISTRICT   OF   COLUMBIA,    ETC. 

vessel,  it  is  true,  is  considered  for  many  purposes  constructively 
as  territory  of  the  United  States,  yet  persons  on  board  of  such 
vessels,  whether  officers,  sailors,  or  passengers,  cannot  invoke 
the  protection  of  the  provisions  referred  to  until  brought  T\dthin 
the  actual  territorial  boundaries  of  the  United  States.  And, 
besides,  their  enforcement  abroad  in  numerous  places,  where 
it  would  be  highly  important  to  have  consuls  invested  with 
judicial  authority,  would  be  impracticable  from  the  impossi- 
bility of  obtaining  a  competent  grand  or  petit  jury.  The  re- 
quirement of  such  a  body  to  accuse  and  to  try  an  offender  would, 
in  a  majority  of  cases,  cause  an  abandonment  of  all  prosecution. 
The  framers  of  the  Constitution,  who  were  fully  aware  of  the 
necessity  of  having  judicial  authority  exercised  by  our  consuls 
in  non-Christian  countries,  if  commercial  intercourse  was  to  be 
had  with  their  people,  never  could  have  supposed  that  all  the 
guarantees  in  the  administration  of  the  law  upon  criminals  at 
home  were  to  be  transferred  to  such  consular  establishments, 
and  applied  before  an  American  who  had  committed  a  felony 
there  could  be  accused  and  tried.  They  must  have  known  that 
such  a  requirement  would  defeat  the  main  purpose  of  investing 
the  consul  with  judicial  authority.  ... 

We  turn  then  to  the  treaties  between  Japan  and  the  United 

States.  .  .  . 

Our  government  has  always  treated  Article  IV  of  the  treaty 
of  1857  as  continuing  in  force,  and  it  is  pubhshed  as  such  in  the 
United  States  Consular  Regulations,  issued  in  1888.  Appendix 
No.  1,  p.  313.  Its  official  interpretation  is  found  in  Article  71 
of  those  regulations,  which  declares  that  "  consuls  have  exclusive 
jurisdiction  over  crimes  and  offences  committed  by  citizens  of 
the  United  States  in  Japan."  ... 

The  legislation  of  Congress  to  carry  into  effect  the  treaty  with 
Japan  is  found  in  the  Revised  Statutes.  .  .  .  (Sees.  4083-4091). 
The  legislation  secures  a  regular  and  fair  trial  to  Americans 
committing  offences  within  that  empire. 

It  enacts  that  the  minister  and  consuls  of  the  United  States, 
appointed  to  reside  there,  shall,  in  addition  to  other  powers 
and  duties  imposed  upon  them  respectively,  be  invested  with 
the  judicial  authority  therein  described,  which  shall  appertain 
to  their  respective  offices  and  be  a  part  of  the  duties  belonging 
thereto,  so  far  as  the  same  is  allowed  by  treaty;  and  empowers 
them  to  arraign  and  try,  in  the  manner  therein  provided,  all 
citizens  of  the  United  States  charged  vnth  offences  against  law 


In  re  ross,  petitioner.  225 

committed  in  that  country,  and  to  sentence  such  offenders  as 
therein  provided,  and  to  issue  all  suitable  and  necessary  process 
to  carry  their  authority  into  execution.  It  declares  that  their 
jurisdiction  in  both  criminal  and  ci\dl  matters  shall  in  all  cases 
be  exercised  and  enforced  in  conformity  with  the  laws  of  the 
United  States,  which,  so  far  as  necessary  to  execute  the  treaty 
and  suitable  to  carry  it  into  effect,  are  extended  over  all  citizens 
of  the  United  States  in  Japan,  and  over  all  others  there  to  the 
extent  that  the  terms  of  the  treaty  justify  or  require.  It  also 
provides  that  where  such  laws  are  not  adapted  to  the  object, 
or  are  deficient  in  the  provisions  necessary  to  furnish  suitable 
remedies,  the  common  law  and  the  law  of  equity  and  admiralty 
shall  be  extended  in  like  manner  over  such  citizens  and  others; 
and  that  if  neither  the  common  law,  nor  the  law  of  equity,  or 
admiralty,  nor  the  statutes  of  the  United  States,  furnish  appro- 
priate and  sufficient  remedies,  the  minister  shall,  by  decrees  and 
regulations,  which  shall  have  the  force  of  law,  supply  such  defects 
and  deficiencies.  Each  of  the  consuls  is  authorized,  upon  facts 
AA-ithin  his  own  knowledge,  or  which  he  has  good  reason  to  believe 
true,  or  upon  complaint  made  or  information  filed  in  WTiting  and 
authenticated  in  such  way  as  shall  be  prescribed  by  the  minister, 
to  issue  his  warrant  for  the  arrest  of  any  citizen  of  the  United 
States  charged  vdih  committing  in  the  country  an  offence  against 
law;  and  to  arraign  and  try  any  such  offender;  and  to  sentence 
him  to  punishment  in  the  manner  therein  prescribed. 

The  legislation  also  declares  that  insurrection  or  rebelhon 
against  the  government,  with  intent  to  subvert  the  same,  and 
murder,  shall  be  punishable  wHth  death,  but  that  no  person  shall 
be  coni-icted  thereof  unless  the  consul  and  his  associates  in  the 
trial  all  concur  in  the  opinion,  and  the  minister  approves  of  the 
conviction.  It  also  provides  that  whenever  in  any  case  the  consul 
is  of  opinion  that,  by  reason  of  the  legal  questions  which  may 
arise  therein,  assistance  will  be  useful  to  him,  or  that  a  severer 
punishment  than  previously  specified  in  certain  cases  will  be 
required,  he  shall  summon  to  sit  Avith  him  on  the  trial  one  or 
more  citizens  of  the  United  States,  not  exceeding  four,  and  in 
capital  cases  not  less  than  four,  who  shall  be  taken  by  lot  from  a 
list  which  has  been  previously  submitted  to  and  approved  by  the 
minister,  and  shall  be  persons  of  good  repute  and  competent  for 
the  duty. 

The  jurisdiction  of  the  consular  tribunal,  as  is  thus  seen,  is 
to  be  exercised  and  enforced  in  accordance  with  the  laws  of 


226  DISTRICT   OF   COLUMBIA,    ETC. 

the  United  States;  and  of  course  in  pursuance  of  them  the 
accused  will  have  an  opportunity  of  examining  the  complaint 
against  him,  or  will  be  presented  with  a  copy  stating  the  offence 
he  has  committed,  will  be  entitled  to  be  confronted  with  the 
witnesses  against  him  and  to  cross-examine  them,  and  to  have 
the  benefit  of  counsel;  and,  indeed,  will  have  the  benefit  of  all 
the  provisions  necessary  to  secure  a  fair  trial  before  the  consul 
and  his  associates.  The  only  complaint  of  this  legislation  made 
by  counsel  is  that,  in  directing  the  trial  to  be  had  before  the 
consul  and  associates  summoned  to  sit  with  him,  it  docs  not 
require  a  previous  presentment  or  indictment  by  a  grand  jury, 
and  does  not  give  to  the  accused  a  petit  jury.  The  want  of  such 
clauses,  as  affecting  the  validity  of  the  legislation,  we  have  already 
considered.  It  is  not  pretended  that  the  prisoner  did  not  have, 
in  other  respects,  a  fair  trial  in  the  consular  court.  .  .  . 

We  have  not  considered  the  objection  to  the  discharge  of 
the  prisoner  on  the  ground  that  he  accepted  the  conditional 
pardon  of  the  President.  If  his  conviction  and  sentence  were 
void  for  want  of  jurisdiction  in  the  consular  tribunal,  it  may 
be  doubtful  whether  he  was  estopped,  by  his  acceptance  of  the 
pardon,  from  assailing  their  validity;  but  into  that  inquiry 
we  need  not  go,  for  the  consular  court  having  had  jurisdiction 
to  try  and  sentence  him,  there  can  be  no  question  as  to  the  bind- 
ing force  of  the  acceptance  Order  affirmed} 

1  By  the  treaty  of  Nov.  22,  1894,  it  was  provided  that  on  July  17,  1899, 
"  the  jurisdiction  then  exercised  Ijy  the  Courts  of  the  United  States  in  Japan 
and  all  the  exceptional  privileges,  exemptions  and  immunities  then  enjoyed 
by  citizens  of  the  United  States  as  a  part  of,  or  appiu-tenant  to  such  juris- 
diction, shall  absolutely  and  without  notice  cease  and  determine,  and  there- 
after all  such  jurisdiction  shall  be  assumed  and  exercised  by  Japanese  Courts." 
29  U.  S.  St.  at  Large,  848.  —  Ed. 


AMERICAN    PUBLISHING    COMPANY   V.    FISHER.  227 

AMERICAN   PUBLISHING   COMPANY  v.   FISHER. 

Supreme  Court  of  the  United  States.     1897. 
[166  United  States,  464.]  i 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

Action  on  a  contract  was  brought  in  the  District  Court  of 
Salt  Lake  County.  A  verdict  for  the  defendant  was  signed  by 
nine  jurors,  the  others  not  concurring.  The  court  received  the 
verdict  and  caused  it  to  be  entered  upon  the  record ;  and  to  this 
action  of  the  court  the  plaintiff  excepted.  Judgment  was  rendered 
for  the  defendant  upon  this  verdict,  under  authority  of  Laws  of 
Utah,  1892,  page  46.  The  judgment  Avas  sustained  by  the 
Supreme  Court  of  the  Territory,  10  Utah,  147. 

Jeremiah  M.  Wilson  (with  whom  F.  W.  von  Cotzhausen  was  on 
the  brief),  for  plaintiff  in  error;  and  J.  L.  Rawlins,  contra. 

Brewer,  J.,  .  .  .  dehvered  the  opinion  of  the  court. 

As  the  amount  in  controversy  is  over  $5000  this  court  in  any 
view  has  jurisdiction  of  the  case,  and  may  inquire  into  all  matters 
properly  preserved  in  the  record.  The  recital  in  the  bill  of 
exceptions  shows  that  proper  exceptions  were  taken  to  the  charge 
of  the  court  in  respect  to  the  number  of  jurors  whose  concurrence 
was  essential  to  the  verdict,  and  also  to  its  action  in  receiving 
and  entering  of  record  such  verdict. 

The  territorial  statute  was  relied  upon  as  authoritj^  for  this 
action.  Its  vahdity,  therefore,  must  be  determined.  Whether 
the  Seventh  Amendment  to  the  Constitution  of  the  United 
States,  which  provides  that  "  in  suits  at  common  laAV,  where 
the  value  in  controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved,"  operates  ex  propria  vigore 
to  invalidate  this  statute,  may  be  a  matter  of  dispute.  In 
Webster  v.  Reid,  11  How.  437,  an  act  of  the  legislature  of  the 
Territory  of  Iowa  dispensing  with  a  jury  in  a  certain  class  of 
common  law  actions  was  held  void.  While  in  the  opinion,  on 
page  460,  the  Seventh  Amendment  was  quoted,  it  was  also  said: 
"  The  organic  law  of  the  Territory  of  Iowa,  by  express  provision 
and  b}'-  reference,  extended  the  laws  of  the  United  States,  in- 
cluding the  orcUnance  of  1787,  over  the  Territory,  so  far  as  they 
are  applicable";  and  the  ordinance  of  1787,  article  2,  in  terms 
provided  that  "  the  inhabitants  of  the  said  Territory  shall  always 

^  The  statement  has  not  been  reprinted.  —  Ed. 


228  DISTRICT   OF    COLUMBIA,    ETC. 

be  entitled  to  the  benefits  of  the  writ  of  habeas  corpus,  and  of 
the  trial  by  jury."  So  the  invalidity  may  have  been  adjudged 
by  reason  of  the  conflict  with  Congressional  legislation.  In 
Reynolds  v.  United  States,  98  U.  S.  145,  154,  it  was  said,  in 
reference  to  a  criminal  case  coming  from  the  Territory  of  Utah, 
that  "  by  the  Constitution  of  the  United  States  (Amendment  \T) 
the  accused  was  entitled  to  a  trial  by  an  impartial  jury."  Both 
of  these  cases  were  quoted  in  Callan  v.  Wilson,  127  U,  S.  540, 
as  authorities  to  sustain  the  ruling  that  the  provisions  in  the 
Constitution  of  the  United  States  relating  to  trial  by  jury  are 
in  force  in  the  District  of  Columbia.  On  the  other  hand,  in 
Mormon  Church  v.  United  States,  13G  U.  S.  1,  44,  it  was  said  by 
Mr.  Justice  Bradley,  speaking  for  the  court:  "Doubtless,  Con- 
gress in  legislating  for  the  Territories  would  be  subject  to  those 
fundamental  limitations  in  favor  of  personal  rights  which  are 
formulated  in  the  Constitution  and  its  amendments;  but  these 
Hmitations  would  exist  rather  by  inference  and  the  general  spirit 
of  the  Constitution  from  which  Congress  derives  all  its  powers, 
than  by  any  express  and  direct  application  of  its  provisions." 
And  in  McAlhster  v.  United  States,  141  U.  S.  174,  it  was  held 
that  the  constitutional  provision  in  respect  to  the  tenure  of 
judicial  offices  did  not  apply  to  territorial  judges. 

But  if  the  Seventh  Amendment  does  not  operate  in  and  of 
itself  to  invalidate  this  territorial  statute,  then  Congress  has 
full  control  over  the  Territories  irrespective  of  any  express  con- 
stitutional limitations,  and  it  has  legislated  in  respect  to  this 
matter.  In  the  first  place,  in  the  act  to  establish  a  territorial 
government  for  Utah,  act  of  September  9,  1850,  c.  51,  §  17, 
9  Stat.  453,  458,  it  enacted  "  that  the  Constitution  and  laws 
of  the  United  States  are  hereby  extended  over  and  declared  to 
be  in  force  in  said  Territory  of  Utah,  so  far  as  the  same,  or  any 
provision  thereof,  may  be  applicable."  A  subsequent  statute 
has  more  specific  reference  to  jury  trials.  Act  of  April  7,  1874, 
c.  80,  18  Stat.  27.  The  first  section  of  this  act,  after  confirming 
the  statutes  of  the  various  Territories  so  far  as  they  authorize 
a  uniform  course  of  proceeding  in  all  cases  whether  legal  or 
equitable,  closes  with  this  proviso:  "Provided,  that  no  party 
has  been  or  shall  be  deprived  of  the  right  of  trial  by  jury  in  cases 
cognizable  at  common  law." 

This,  of  course,  implies  not  merely  that  the  form  of  a  jury 
trial  be  preserved,  but  also  all  its  substantial  elements.  Walker 
V.  Southern  Pacific  Railroad,  165  U.  S.  593. 


DOWNES   V.    BIDWELL. 


229 


Therefore,  either  the  Seventh  Amendment  to  the  Constitu- 
tion, or  these  acts  of  Congress,  or  all  together,  secured  to  every 
litigant  in  a  common  law  action  in  the  courts  of  the  Territory  of 
Utah  the  right  to  a  trial  by  jury,  and  nullified  any  act  of  its 
legislature  which  attempted  to  take  from  him  anything  which 
is  of  the  substance  of  that  right.  Now  unanimity  was  one  of 
the  peculiar  and  essential  features  of  trial  by  jury  at  the  common 
law.  No  authorities  are  needed  to  sustain  this  proposition. 
Whatever  may  be  true  as  to  legislation  which  changes  any  mere 
details  of  a  jury  trial,  it  is  clear  that  a  statute  which  destroys 
this  substantial  and  essential  feature  thereof  is  one  abridging  the 
right.  It  follows,  therefore,  that  the  court  erred  in  receiving  a 
verdict  returned  by  only  nine  jurors,  the  others  not  concurring. 

In  order  to  guard  against  any  misapprehension  it  may  be 
proper  to  say  that  the  power  of  a  State  to  change  the  rule  in 
respect  to  unanimity  of  jurors  is  not  before  us  for  considera- 
tion. Walker  v.  Sauvinet,  92  U.  S.  90;  Hurtado  v.  California, 
110  U.  S.  516. 

The  judgment  w\\\  be 

Reversed,  and  as  the  questions  involved  in  the  case  are  not  of  a 

Federal  nature,  and  diverse  citizenship  is  not  alleged,  the  case 

must  be  remanded  to  the  Supreme  Court  of  the  State  for  further 

proceedings. 


DOWNES  V.  BIDWELL. 
Supreme  Court  of  the  United  States.     1901. 

[182  United  States,  244.]  i 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

This  was  an  action  to  recover  duties  paid  under  protest  to  the 
collector  of  the  port  of  New  York  on  goods  brought  into  that  port 
from  Porto  Rico  in  November,  1900,  after  the  passage  of  the  so- 
called  Foraker  Act  providing  .  temporary  government.  On 
demurrer  to  the  complaint  for  want  of  jurisdiction  and  for  in- 
sufficiency of  averments,  the  complaint  was  dismissed.  There- 
upon the  plaintiff  sued  out  a  wTit  of  error. 

1  The  statement  has  not  been  reprinted.  —  Ed. 


230  DISTRICT   OF    COLUMBIA,    ETC. 

F.  R.  Coudert,  Jr.,  and  others,  for  plaintiff  in  error;  and  J.  K. 
Richards,  Solicitor  General,  and  P.  C.  Knox,  Attorney  General, 
for  defendants  in  error. 

Brown,  J.,  .  .  .  announced  the  conclusion  and  judgment  of 
the  court. 

This  case  involves  the  question  whether  merchandise  brought 
into  the  port  of  New  York  from  Porto  Rico  since  the  passage 
of  the  Foraker  act,  is  exempt  from  duty,  notwithstanding  the 
third  section  of  that  act,  which  requires  the  payment  of  "fif- 
teen per  centum  of  the  duties  which  are  required  to  be  levied, 
collected  and  paid  upon  like  articles  of  merchandise  imported 
from  foreign  countries."  .  .  . 

In  the  case  of  De  Lima  v.  Bidwell,  just  decided,  we  held  that 
upon  the  ratification  of  the  treaty  of  peace  ^ath  Spain,  Porto 
Rico  ceased  to  be  a  foreign  country,  and  became  a  territory 
of  the  United  States,  and  that  duties  were  no  longer  collectible 
upon  merchandise  brought  from  that  island.  We  are  now  asked 
to  hold  that  it  became  a  part  of  the  Uyiited  States  within  that  pro- 
vision of  the  Constitution  which  declares  that  "all  duties,  imposts 
and  excises  shall  be  uniform  throughout  the  United  States." 
Art.  I,  sec.  8.  If  Porto  Rico  be  a  part  of  the  United  States,  the 
Foraker  act  imposing  duties  upon  its  products  is  unconstitu- 
tional, not  only  by  reason  of  a  violation  of  the  uniformity  clause, 
but  because  by  section  9  "  vessels  bound  to  or  from  one  State  " 
cannot  "  be  obliged  to  enter,  clear  or  pay  duties  in  another." 

The  case  also  involves  the  broader  question  whether  the  rev- 
enue clauses  of  the  Constitution  extend  of  their  owti  force  to 
our  newly  acquired  territories.  The  Constitution  itself  does 
not  answer  the  question.  Its  solution  must  be  found  in  the 
nature  of  the  government  created  by  that  instrument,  in  the 
opinion  of  its  contemporaries,  in  the  practical  construction  put 
upon  it  by  Congress  and  in  the  decisions  of  this  court. 

The  Federal  government  was  created  in  1777  by  the  union  of 
thirteen  colonies  of  Great  Britain  in  "  certain  articles  of  con- 
federation and  perpetual  union,"  the  first  one  of  which  declared 
that  "  the  stile  of  this  confederacy  shall  be  the  United  States  of 
America."  Each  member  of  the  confederacy  was  denominated 
a  State.  Provision  was  made  for  the  representation  of  each 
State  by  not  less  than  two  nor  more  than  seven  delegates;  but 
no  mention  was  made  of  territories  or  other  lands,  except  in 
Art.  XI,  which  authorized  the  admission  of  Canada,  upon  its 
"acceding  to  this  confederation,"  and  of  other  colonies  if  such 


DOWNES    V.    BIDWELL.  231 

admission  were  agreed  to  by  nine  States.  At  this  time  several 
States  made  claims  to  large  tracts  of  land  in  the  unsettled  West, 
which  they  were  at  first  indisposed  to  relinquish.  .  .  .  Most  of 
these  States  in  the  meantime  having  ceded  their  interests  in  these 
lands,  the  confederate  Congress,  in  1787,  created  the  first  terri- 
torial govermnent  northwest  of  the  Ohio  River,  provided  for 
local  self-government,  a  bill  of  rights,  a  representation  in  Con- 
gress by  a  delegate,  who  should  have  a  seat  "  with  a  right  of 
debating,  but  not  of  voting,"  and  for  the  ultimate  formation  of 
States  therefrom,  and  their  admission  into  the  Union  on  an  equal 
footing  with  the  original  States. 

The  confederacy,  owing  to  well-known  historical  reasons, 
having  proven  a  failure,  a  new  Constitution  was  formed  in  1787 
by  "  the  people  of  the  United  States  "  "for  the  United  States 
of  America,"  as  its  preamble  declares.  All  legislative  powers 
were  vested  in  a  Congress  consisting  of  representatives  from 
the  several  States,  but  no  provision  was  made  for  the  admission 
of  delegates  from  the  territories,  and  no  mention  was  made  of 
territories  as  separate  portions  of  the  Union,  except  that  Con- 
gress was  empowered  "  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States."  At  this  time  all  of  the  States  had 
ceded  their  unappropriated  lands  except  North  Carolina  and 
Georgia.  .  .  . 

It  is  sufficient  to  observe  in  relation  to  these  three  funda- 
mental instruments  that  it  can  nowhere  be  inferred  that  the 
territories  were  considered  a  part  of  the  United  States.  The 
Constitution  was  created  by  the  people  of  the  United  States, 
as  a  union  of  States,  to  be  governed  solely  by  representatives 
of  the  States;  and  even  the  provision  relied  upon  here,  that 
all  duties,  imposts,  and  excises  shall  be  uniform  "  throughout 
the  United  States,"  is  explained  by  subsequent  provisions  of 
the  Constitution,  that  "  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State,"  and  "  no  preference  shall  be  given 
by  any  regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another;  nor  shall  vessels  bound  to  or  from 
one  State  be  obliged  to  enter,  clear  or  pay  duties  in  another." 
In  short,  the  Constitution  deals  with  States,  their  people,  and 
their  representatives.  .  .  . 

The  question  of  the  legal  relations  between  the  States  and 
the  newly  acquired  territories  first  became  the  subject  of  public 


232  DISTRICT   OF    COLUMBIA,    ETC. 

discussion    in    connection    with    the    purchase    of    Louisiana    in 

1803.  .  .  . 

Two  bills  were  passed,  one  October  31,  1803,  2  Stat.  245, 
authorizing  the  President  to  take  possession  of  the  territory,  and 
to  continue  the  existing  government,  and  the  other  November 
10,  1803,  2  Stat.  245,  making  provision  for  the  payment  of  the 
purchase  price.      These  acts  continued  in  force  until  March  26, 

1804,  when  a  new  act  was  passed  providing  for  a  temporary 
government,  2  Stat.  283,  c.  38,  and  vesting  all  legislative  powers 
in  a  governor  and  legislative  council,  to  be  appointed  by  the 
President.  These  statutes  may  be  taken  as  expressing  the  views 
of  Congress,  first,  that  territory  may  be  la\A^ully  acquired  by 
treaty,  with  a  provision  for  its  ultimate  incorporation  into  the 
Union;  and,  second,  that  a  discrimination  in  favor  of  certain 
foreign  vessels  trading  with  the  ports  of  a  newly  acquired  terri- 
tory is  no  violation  of  that  clause  of  the  Constitution,  Art.  1, 
sec.  9,  that  declares  that  no  preference  shall  be  given  to  the  ports 
of  one  State  over  those  of  another.  It  is  e\adent  that  the  consti- 
tutionahty  of  this  discrimination  can  only  be  supported  upon 
the  theory  that  ports  of  territories  are  not  ports  of  States  within 
the  meaning  of  the  Constitution. 

The  same  construction  was  adhered  to  in  the  treaty  ^\^th 
Spain  for  the  purchase  of  Florida,-  8  Stat.  252,  the  sixth  article 
of  which  provided  that  the  inhabitants  should  "  be  incorporated 
into  the  Union  of  the  United  States,  as  soon  as  may  be  consist- 
ent with  the  principles  of  the  Federal  Constitution;  "  and  the 
fifteenth  article  of  which  agreed  that  Spanish  vessels  coming 
directly  from  Spanish  ports  and  laden  with  productions  of  Span- 
ish growi:h  or  manufacture,  should  be  admitted,  for  the  term 
of  twelve  years,  to  the  ports  of  Pensacola  and  St.  Augustine, 
"  without  paying  other  or  higher  duties  on  their  cargoes,  or  of 
tonnage,  than  will  be  paid  by  the  vessels  of  the  United  States," 
and  that  "  during  the  said  term  no  other  nation  shall  enjoy  the 
same  privileges  wdthin  the  ceded  territories." 

So,  too,  in  the  act  annexing  the  Republic  of  Hawaii,  there 
was  a  provision  continuing  in  effect  the  customs  relations  of 
the  Hawaiian  Islands  with  the  United  States  and  other  coun- 
tries, the  effect  of  which  was  to  compel  the  collection  in  those 
islands  of  a  duty  upon  certain  articles,  whether  coming  from 
the  United  States  or  other  countries,  much  greater  than  the 
duty  pro\aded  by  the  general  tariff  law  then  in  force.  This 
was  a  discrimination  against  the  Hawaiian  ports  wholly  incon- 


DOWNES   V.    BIDWELL.  233 

sistent  with  the  revenue  clauses  of  the   Constitution,   if  such 
clauses  were  there  operative. 

The  very  treaty  with  Spain  under  discussion  in  this  case  con- 
tains similar  discriminative  provisions,  which  are  apparently 
irreconcilable  with  the  Constitution,  if  that  instrument  be  held 
to  extend  to  these  islands  immediately  upon  their  cession  to  the 
United  States.  .  .  . 

Notwithstanding  these  provisions  for  the  incorporation  of 
territories  into  the  Union,  C  ongrcss,  not  only  in  organizing  the 
territory  of  Louisiana  by  act  of  March  26,  1804,  but  all  other 
territories  carved  out  by  this  vast  inheritance,  has  assumed  that 
the  Constitution  did  not  extend  to  them  of  its  o^\^l  force,  and 
has  in  each  case  made  special  provision,  either  that  their  legis- 
latures shall  pass  no  law  inconsistent  with  the  Constitution  of 
the  United  States,  or  that  the  Constitution  or  laws  of  the  United 
States  shall  be  the  supreme  law  of  such  territories.  Finally, 
in  Rev.  Stat.  sec.  1891,  a  general  provision  was  enacted  that 
"  the  Constitution  and  all  laws  of  the  United  States  which  are 
not  locally  inapplicable  shall  have  the  same  force  and  effect 
within  all  the  organized  territories,  and  in  every  territory  here- 
after organized,  as  elsewhere  within  the  United  States."  .  .  . 

Indeed,  whatever  may  have  been  the  fluctuations  of  opinion 
in  other  bodies  (and  even  this  court  has  not  been  exempt  from 
them).  Congress  has  been  consistent  in  recognizing  the  difference 
between  the  States  and  territories  under  the  Constitution. 

The  decisions  of  this  court  upon  this  subject  have  not  been 
altogether  harmonious.  Some  of  them  are  based  upon  the 
theory  that  the  Constitution  does  not  apply  to  the  territories 
without  legislation.  Other  cases,  arising  from  territories  where 
such  legislation  has  been  had,  contain  language  which  would 
justify  the  inference  that  such  legislation  was  unnecessary,  and 
that  the  Constitution  took  effect  immediately  upon  the  cession 
of  the  territory  to  the  United  States.  It  may  be  remarked, 
upon  the  threshold  of  an  analysis  of  these  cases,  that  too  much 
weight  must  not  be  given  to  general  expressions  found  in  sev- 
eral opinions  that  the  power  of  Congress  over  territories  is  com- 
plete and  supreme,  because  these  words  may  be  interpreted  as 
meaning  only  supreme  under  the  Constitution;  nor  upon  the 
other  hand,  to  general  statements  that  the  Constitution  covers 
the  territories  as  well  as  the  States,  since  in  such  cases  it  will 
be  found  that  acts  of  Congress  had  already  extended  the  Con- 
stitution to  such  territories,  and  that  thereby  it  suljordinated 


234  DISTRICT   OF   COLUMBIA,    ETC. 

not  only  its  own  acts,  but  those  of  the  territorial  legislatures, 
to  what  had  become  the  supreme  law  of  the  land.  .  .  . 

It  by  no  means  becomes  necessary  to  show  that  none  of  the 
articles  of  the  Constitution  apply  to  the  Island  of  Porto  Rico. 
There  is  a  clear  distinction  between  such  prohibitions  as  go  to 
the  very  root  of  the  power  of  Congress  to  act  at  all,  irrespective 
of  time  or  place,  and  such  as  are  operative  only  "  throughout  the 
United  States  "  or  among  the  several  States. 

Thus,  when  the  Constitution  declares  that  "  no  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed,"  and  that  "  no  title  of  no- 
bility shall  be  granted  by  the  United  States,"  it  goes  to  the 
competency  of  Congress  to  pass  a  bill  of  that  description.  Per- 
haps, the  same  remark  may  apply  to  the  First  Amendment, 
that  "  Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the 
people  to  peacefully  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances."  "We  do  not  wish,  however,  to  be 
understood  as  expressing  an  opinion  how  far  the  bill  of  rights 
contained  in  the  first  eight  amendments  is  of  general  and  how 
far  of  local  application. 

Upon  the  other  hand,  when  the  Constitution  declares  that 
all  duties  shall  be  uniform  "  throughout  the  United  States,"  it 
becomes  necessary  to  inquire  whether  there  be  any  territory 
over  which  Congress  has  jurisdiction  which  is  not  a  part  of  the 
"  United  States,"  by  which  term  we  understand  the  States 
whose  people  united  to  form  the  Constitution,  and  such  as  have 
since  been  admitted  to  the  Union  upon  an  equality  with  them. 
Not  only  did  the  people  in  adopting  the  Thirteenth  Amend- 
ment thus  recognize  a  distinction  between  the  United  States 
and  "  any  place  subject  to  their  jurisdiction,"  but  Congress 
itself,  in  the  act  of  March  27,  1804,  c.  56,  2  Stat.  298,  providing 
for  the  proof  of  public  records,  applied  the  provisions  of  the  act 
not  only  to  "  every  court  and  office  within  the  United  States," 
but  to  the  ''  courts  and  offices  of  the  respective  territories  of 
the  United  States,  and  countries  subject  to  the  jurisdiction  of 
the  United  States,"  as  to  the  courts  and  offices  of  the  several 
States.  .  .  . 

We  are  also  of  opinion  that  the  power  to  acquire  territory  by 
treaty  implies  not  only  the  power  to  govern  such  territory,  but 
to  prescribe  upon  what  terms  the  United  States  will  receive  its 


DOWNES    V.    BIDWELL.  235 

inhabitants,  and  what  their  status  shall  be  in  what  Chief  Jus- 
tice Marshall  termed  the  "  American  Empire."  .  .  . 

We  suggest,  without  intending  to  decide,  that  there  may  be 
a  distinction  between  certain  natural  rights,  enforced  in  the 
Constitution  by  prohibitions  against  interference  Tvath  them, 
and  what  may  be  termed  artificial  or  remedial  rights,  which 
are  peculiar  to  our  cwti  system  of  jurisprudence.  Of  the  former 
class  are  the  rights  to  one's  o\\ti  religious  opinion  and  to  a  pubhc 
expression  of  them,  or,  as  sometimes  said,  to  worship  God  accord- 
ing to  the  dictates  of  one's  o^\^l  conscience;  the  right  to  per- 
sonal liberty  and  indivadual  property;  to  freedom  of  speech  and 
of  the  press;  to  free  access  to  courts  of  justice,  to  due  process 
of  law  and  to  an  equal  protection  of  the  laws;  to  immunities 
from  unreasonable  searches  and  seizures,  as  well  as  cruel  and 
unusual  punishments;  and  to  such  other  immunities  as  are  in- 
dispensable to  a  free  government.  Of  the  latter  class  are  the 
rights  to  citizenship,  to  suffrage,  Minor  v.  Happersett,  21  Wall. 
162,  and  to  the  particular  methods  of  procedure  pointed  out  in 
the  Constitution,  which  are  peculiar  to  Anglo-Saxon  jurispru- 
dence, and  some  of  which  have  already  been  held  by  the  States 
to  be  unnecessary  to  the  pro])er  protection  of  individuals. 

Whatever  may  be  finally  decided  by  the  American  people  as  to 
the  status  of  these  islands  and  their  inhabitants  —  whether  they 
shall  be  introduced  into  the  sisterhood  of  States  or  be  permitted 
to  form  independent  governments  —  it  does  not  follow  that,  in 
the  meantime,  awaiting  that  decision,  the  people  are  in  the  matter 
of  personal  rights  unprotected  by  the  provisions  of  our  Constitu- 
tion, and  subject  to  the  merely  arbitrary  control  of  Congress. 
Even  if  regarded  as  aliens,  they  are  entitled  under  the  principles  of 
the  Constitution  to  be  protected  in  life,  liberty  and  property.  .  .  . 

In  passing  upon  the  questions  involved  in  this  case  and  kindred 
cases,  Xs'e  ought  not  to  overlook  the  fact  that,  while  the  Consti- 
tution was  intended  to  establish  a  permanent  form  of  govern- 
ment for  the  States  which  should  elect  to  take  advantage  of  its 
conditions,  and  continue  for  an  indefinite  future,  the  vast  possi- 
bihties  of  that  future  could  never  have  entered  the  minds  of  its 
framers.  .  .  .  The  question  of  territories  was  dismissed  with  a 
single  clause,  apparently  applicable  only  to  the  territories  then 
existing,  giving  Congress  the  power  to  govern  and  dispose  of 
them.  .  .  . 

If  it  be  once  conceded  that  we  are  at  liberty  to  acquire  foreign 
territory,  a  presumption  arises  that  our  power  with  respect  to 


236  DISTRICT   OF   COLUMBIA,    ETC. 

such  territories  is  the  same  power  which  other  nations  have  been 
accustomed  to  exercise  with  respect  to  territories  acquired  by 
■them.  If,  in  Hmiting  the  power  which  Congress  was  to  exercise 
within  the  United  States,  it  was  also  intended  to  limit  it  with 
regard  to  such  territories  as  the  people  of  the  United  States 
should  thereafter  acquire,  such  limitations  should  have  been 
expressed.  Instead  of  that,  we  find  the  Constitution  speaking 
only  to  States,  except  in  the  territorial  clause,  which  is  absolute 
in  its  terms,  and  suggestive  of  no  limitations  upon  the  power  of 
Congress  in  deaUng  with  them.  The  States  could  only  delegate 
to  Congress  such  powers  as  they  themselves  possessed,  and  as 
they  had  no  power  to  acquire  new  territory  they  had  none  to 
delegate  in  that  connection.  The  logical  inference  from  this  is, 
that  if  Congress  had  power  to  acquire  new  territory,  which  is 
conceded,  that  power  w^as  not  hampered  by  the  constitutional 
provisions.  If,  upon  the  other  hand,  we  assume  that  the  terri- 
torial clause  of  the  Constitution  was  not  intended  to  be  restricted 
to  such  territory  as  the  United  States  then  possessed,  there  is 
nothing  in  the  Constitution  to  indicate  that  the  power  of  Congress 
in  dealing  with  them  was  intended  to  be  restricted  by  any  of 
the  other  provisions.  ... 

The  liberality  of  Congress  in  legislating  the  Constitution  into 
all  our  contiguous  territories  has  undoubtedly  fostered  the  im- 
pression that  it  went  there  by  its  own  force,  but  there  is  nothing 
in  the  Constitution  itself,  and  Uttle  in  the  interpretation  put 
upon  it,  to  confirm  that  impression.  .  .  .  The  executive  and 
legislative  departments  of  the  government  have  for  more  th£.n  a 
century  interpreted  this  silence  as  precluding  the  idea  that  the 
Constitution  attached  to  these  territories  as  soon  as  acquired, 
and  unless  such  interpretation  be  manifestly  contrary  to  the 
letter  or  spirit  of  the  Constitution,  it  should  be  followed  by  the 
judicial  department.  Cooley's  Consti.  Lim.,  sees.  81  to  85. 
Burrow-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S.  53,  57;  Field 
V.  Clark,  143  U.  S.  649,  691.  ... 

We  are  therefore  of  opinion  that  the  Island  of  Porto  Rico  is 
a  territory  appurtenant  and  belonging  to  the  United  States, 
but  not  a  part  of  the  United  States  within  the  revenue  clauses 
of  the  Constitution;  that  the  Foraker  act  is  constitutional,  so 
far  as  it  imposes  duties  upon  imports  from  such  island,  and  that 
the  plaintiff  cannot  recover  back  the  duties  exacted  in  this  case. 
The  judgment  of  the  Circuit  Court  is  therefore. 

Affirmed. 


DOWNES   V.    BIDWELL.  237 

White,  J.,  with  whom  concurred  Shiras  and  McKenna,  JJ., 
uniting  in  the  judgment  of  affirmance.  ,  .  . 

In  the  result  I  hkewise  concur.  As,  however,  the  reason^ 
which  cause  me  to  do  so  are  different  from,  if  not  in  conflict  with, 
those  expressed  in  that  opinion,  if  its  meaning  is  by  me  not  mis- 
conceived, it  becomes  my  duty  to  state  the  convictions  which 
control  me.  .  .  . 

Congress  in  legislating  for  Porto  Rico  was  only  empowered  to 
act  within  the  Constitution  and  subject  to  its  applicable  limita- 
tions. ... 

Albeit,  as  a  general  rule,  the  status  of  a  particular  territory 
has  to  be  taken  in  view  when  the  applicability  of  any  provision 
of  the  Constitution  is  questioned,  it  does  not  follow  when  the 
Constitution  has  absolutely  withheld  from  the  government  all 
power  on  a  given  subject,  that  such  an  inquiry  is  necessary. 
Undoubtedly,  there  are  general  prohibitions  in  the  Constitution 
in  favor  of  the  liberty  and  property  of  the  citizen  which  are  not 
mere  regulations  as  to  the  form  and  manner  in  which  a  conceded 
power  may  be  exercised,  but  which  are  an  absolute  denial  of 
all  authority  under  an}-  circumstances  or  conditions  to  do  par- 
ticular acts.  In  the  nature  of  things,  limitations  of  this  char- 
acter cannot  be  under  any  circumstances  transcended,  because 
of  the  complete  absence  of  power. 

The  distinction  which  exists  between  the  two  characters  of 
restrictions,  those  which  regulate  a  granted  power  and  those 
which  withdraw  all  authority  on  a  particular  subject,  has  in 
effect  been  always  conceded,  even  by  those  who  most  strenuously 
insisted  on  the  erroneous  principle  that  the  Co_istitution  did  not 
apply  to  Congress  in  legislating  for  the  territories,  and  was  not 
operative  in  such  districts  of  country.  .  .  . 

There  is  in  reason  then  no  room  in  this  case  to  contend  that 
Congress  can  destroy  the  liberties  of  the  people  of  Porto  Rico 
by  exercising  in  their  regard  powers  against  freedom  and  jus- 
tice which  the  Constitution  has  absolutely  denied.  There  can 
also  be  no  controversy  as  to  the  right  of  Congress  to  locally 
govern  the  island  of  Porto  Rico  as  its  wisdom  may  decide  and 
in  so  doing  to  accord  only  such  degree  of  representative  govern- 
ment as  may  be  determined  on  by  that  body.  There  can  also  be 
no  contention  as  to  the  authority  of  Congress  to  levy  such  local 
taxes  in  Porto  Rico  as  it  may  choose,  even  although  the  amount 
of  the  local  burden  so  levied  be  manifold  more  onerous  than 
is  the  duty  with  which  this  case  is  concerned.     But  as  the  duty 


238  DISTRICT   OF   COLUMBIA,    ETC. 

in  question  was  not  a  local  tax,  since  it  was  levied  in  the  United 
States  on  goods  coming  from  Porto  Rico,  it  follows  that  if  that 
island  was  a  part  of  the  United  States,  the  duty  was  repugnant 
to  the  Constitution,  since  the  authority  to  levy  an  impost  duty 
conferred  by  the  Constitution  on  Congress,  does  not,  as  I  have 
conceded,  include  the  right  to  lay  such  a  burden  on  goods  com- 
ing from  one  to  another  part  of  the  United  States.  And,  be- 
sides, if  Porto  Rico  was  a  part  of  the  United  States  the  exaction 
was  repugnant  to  the  uniformity  clause. 

The  sole  and  only  issue,  then,  is  not  whether  Congress  has 
taxed  Porto  Rico  without  representation  —  for,  whether  the  tax 
was  local  or  national,  it  could  have  been  imposed,  although 
Porto  Rico  had  no  representative  local  government  and  was 
not  represented  in  Congress  —  but  is,  whether  the  particular 
tax  in  question  was  levied  in  such  form  as  to  cause  it  to  be 
repugnant  to  the  Constitution.  This  is  to  be  resolved  by 
answering  the  inquiry.  Had  Porto  Rico,  at  the  time  of  the  pas- 
sage of  the  act  in  question,  been  incorporated  into  and  become 
an  integral  part  of  the  United  States  ? 

On  the  one  hand,  it  is  affirmed  that,  although  Porto  Rico 
had  been  ceded  by  the  treaty  with  Spain  to  the  United  States, 
the  cession  was  accompanied  by  such  conditions  as  prevented 
that  island  from  becoming  an  integral  part  of  the  United  States, 
at  least,  temporarily,  and  until  Congress  had  so  determined. 
On  the  other  hand,  it  is  insisted  that  by  the  fact  of  cession  to 
the  United  States  alone,  irrespective  of  any  conditions  found 
in  the  treaty,  Porto  Rico  became  a  part  of  the  United  States, 
and  was  incorporated  into  it.  It  is  incompatible  with  the  Con- 
stitution, it  is  argued,  for  the  government  of  the  United  States 
to  accept  a  cession  of  territory  from  a  foreign  country  without 
complete  incorporation  following  as  an  immediate  result,  and 
therefore  it  is  contended  that  it  is  immaterial  to  inquire  what 
were  the  conditions  of  the  cession,  since  if  there  were  any  which 
were  intended  to  prevent  incorporation  they  were  repugnant 
to  the  Constitution  and  void.  The  result  of  the  argument  is  that 
the  Government  of  the  United  States  is  absolutely  without  power 
to  acquire  and  hold  territory  as  property  or  as  appurtenant  to 
the  United  States.  .  .  . 

It  may  not  be  doubted  that  by  the  general  principles  of  the 
law  of  nations  every  government  which  is  s,overeign  within  its 
sphere  of  action  possesses  as  an  inherer,t  attribute  the  power  to 
acquire  territory  by  discovery,  by  agreement  or  treaty,  and  by 


DOWNES   V.    BIDWELL. 


239 


conquest.  It  cannot  also  be  gainsaid  that  as  a  general  rule 
wherever  a  government  acquires  territory  as  a  result  of  any  of 
the  modes  above  stated,  the  relation  of  the  territory  to  the  new 
government  is  to  be  determined  by  the  acquiring  power  in  the 
absence  of  stipulations  upon  the  subject.  ... 

When  our  forefathers  threw  off  their  allegiance  to  Great  Brit- 
ain and  estabUshed  a  republican  government,  assuredly  they 
deemed  that  the  nation  which  they  called  into  being  was  en- 
dowed with  those  general  powers  to  acquire  territory  which  all 
independent  governments  in  virtue  of  their  sovereignty  enjoyed. 
This  is  demonstrated  by  the  concluding  paragraph  of  the  Dec- 
laration of  Independence,  which  reads  as  follows: 

"  As  free  and  independent  States,  they  [the  United  States  of 
America]  have  full  power  to  levy  war,  conclude  peace,  contract 
alliances,  establish  commerce,  and  to  do  all  other  acts  and  things 
which  independent  States  may  of  right  do." 

That  under  the  confederation  it  was  considered  that  the  gov- 
ernment of  the  United  States  had  authority  to  acquire  territory 
like  any  other  sovereignty,  is  clearly  established  by  the  elev- 
enth of  the  articles  of  confederation. 

The  decisions  of  this  court  leave  no  room  for  question  that, 
under  the  Constitution,  the  government  of  the  United  States, 
in  virtue  of  its  sovereignty,  supreme  within  the  sphere  of  its 
delegated  power,  has  the  full  right  to  acquire  territory  enjoyed 
by  every  other  sovereign  nation.  ... 

Indeed,  it  is  superfluous  to  cite  authorities  establishing  the 
right  of  the  government  of  the  United  States  to  acquire  terri- 
tory, in  view  of  the  possession  of  the  Northwest  Territory  when 
the  Constitution  was  framed  and  the  cessions  to  the  general 
government  by  various  States  subsequent  to  the  adoption  of 
the  Constitution,  and  in  view  also  of  the  vast  extension  of  the 
territory  of  the  United  States  brought  about  since  the  existence 
of  the  Constitution  by  substantially  every  form  of  acquisition 
known  to  the  law  of  nations.  .  .  . 

The  general  principle  of  the  law  of  nations,  akeady  stated, 
is  that  acquired  territory,  in  the  absence  of  agreement  to  the 
contrarv,  will  bear  such  relation  to  the  acquiring  government 
as  may  be  by  it  determined.  To  concede  to  the  government 
of  the  United  States  the  right  to  acquire  and  to  strip  it  of  all 
power  to  protect  the  birthright  of  its  own  citizens  and  to  pro- 
vide for  the  well-being  of  the  acquired  territory  by  such  enact- 
ments as  may  in  view  of  its  condition  be  essential,  is,  in  effect, 


240  DISTRICT   OF    COLUMBIA,    ETC. 

to  say  that  the  United  States  is  helpless  in  the  family  of  na- 
tions, and  does  not  possess  that  authority  which  has  at  all  times 
been  treated  as  an  incident  of  the  right  to  acquire.  .  .  . 

Gray,  J.,  concurring. 

Concurring  in  the  judgment  of  affirmance  in  this  case,  and  in 
substance  agreeing  with  the  opinion  of  Mr.  Justice  White,  I 
will  sum  up  the  reasons  for  my  concurrence  in  a  few  proposi- 
tions, which  may  also  indicate  my  position  in  other  cases  now 
standing  for  judgment. 

The  cases  now  before  the  court  do  not  touch  the  authority  of 
the  United  States  over  the  Territories,  in  the  strict  and  technical 
sense,  being  those  which  lie  within  the  United  States,  as  bounded 
by  the  Atlantic  and  Pacific  Oceans,  the  Dominion  of  Canada 
and  the  Republic  of  Mexico,  and  the  Territories  of  Alaska  and 
Hawaii;  but  they  relate  to  territory,  in  the  broader  sense,  ac- 
quired by  the  United  States  by  war  with  a  foreign  State.  .  .  . 

The  civil  government  of  the  United  States  cannot  extend  im- 
mediately, and  of  its  own  force,  over  territory  acquired  by  war. 
Such  territory  must  necessarily,  in  the  first  instance,  be  gov- 
erned by  the  military  power  under  the  control  of  the  President 
as  commander  in  chief.  Civil  government  cannot  take  effect  at 
once,  as  soon  as  possession  is  acquired  under  military  authority, 
or  even  as  soon  as  that  possession  is  confirmed  by  treaty.  It 
can  only  be  put  in  operation  by  the  action  of  the  appropriate 
political  department  of  the  government,  at  such  time  and  in  such 
degree  as  that  department  may  determine.  There  must,  of  ne- 
cessity, be  a  transition  period. 

In  a  conquered  territory,  civil  government  must  take  effect, 
either  by  the  action  of  the  treaty-making  power,  or  by  that  of 
the  Congress  of  the  United  States,  The  office  of  a  treaty  of 
cession  ordinarily  is  to  put  an  end  to  all  authority  of  the  foreign 
government  over  the  territory;  and  to  subject  the  territory  to 
the  disposition  of  the  Government  of  the  United  States. 

The  government  and  disposition  of  territory  so  acquired  be- 
long to  the  Government  of  the  United  States,  consisting  of  the 
President,  the  Senate,  elected  by  the  States,  and  the  House  of 
Representatives,  chosen  by  and  immediately  representing  the 
people  of  the  United  States.  .  .  . 

In  the  absence  of  Congressional  legislation,  the  regulation  of 
the  revenue  of  the  conquered  territory,  even  after  the  treaty  of 
cession,  remains  vnth  the  executive  and  military  authority. 


DOWNES   V.    BIDWELL.  241 

So  long  as  Congress  has  not  incorporated  the  territory  into 
the  United  States,  neither  mihtary  occupation  nor  cession  by 
treaty  makes  the  conquered  territory  domestic  territory,  in  the 
sense  of  the  revenue  laws.  .  .  . 

If  Congress  is  not  ready  to  construct  a  complete  government 
for  the  conquered  territory,  it  may  establish  a  temporary  gov- 
ernment, which  is  not  subject  to  all  the  restrictions  of  the  Con- 
stitution, 

Such  was  the  effect  of  the  act  of  Congress  of  April  12,  1900, 
c.  191,  entitled  "  An  act  temporarily  to  provide  revenues  and  a 
civil  government  for  Porto  Rico,  and  for  other  purposes."  By 
the  third  section  of  that  act,  it  was  expressly  declared  that  the 
duties  thereby  established  on  merchandise  and  articles  going 
into  Porto  Rico  from  the  United  States,  or  coming  into  the 
United  States  from  Porto  Rico,  should  cease  in  any  event  on 
March  1,  1902,  and  sooner  if  the  legislative  assembly  of  Porto  Rico 
should  enact  and  put  into  operation  a  system  of  local  taxation  to 
meet  the  necessities  of  the  government  established  by  that  act. 

The  system  of  duties,  temporarily  established  by  that  act  dur- 
ing the  transition  period,  was  ^\dthin  the  authority  of  Congress 
under  the  Constitution  of  the  United  States. 

Fuller,  C.  J.  (with  whom  concurred  Harlan,^  Brewer,  and 
Peckham,  J  J.),  dissenting.  ... 

The  majority  widely  differ  in  the  reasoning  by  which  the  con- 
clusion is  reached,  although  there  seems  to  be  concurrence  in  the 
view  that  Porto  Rico  belongs  to  the  United  States,  but  neverthe- 
less, and  notwithstanding  the  act  of  Congress,  is  not  a  part  of 
the  United  States,  subject  to  the  provisions  of  the  Constitution 
in  respect  of  the  levy  of  taxes,  duties,  imposts  and  excises.  .  .  . 

This  act  on  its  face  does  not  comply  with  the  rule  of  uniformity 
and  that  fact  is  admitted.  .  .  . 

No  satisfactory  ground  has  been  suggested  for  restricting  the 
words  "  throughout  the  United  States,"  as  qualifying  the  power 
to  impose  duties,  to  the  States,  and  that  conclusion  is  the  more 
to  be  avoided  when  we  reflect  that  it  rests,  in  the  last  analysis, 
on  the  assertion  of  the  possession  by  Congress  of  unlimited  power 
over  the  territories. 

The  government  of  the  United  States  is  the  government  or- 
dained by  the  Constitution,  and  possesses  the  powers  conferred 
by  the  Constitution.  .  .  . 

1  Besides  concurring  in  this  dissenting  opinion,  Harlan,  J.,  gave  a  separate 
opinion,  which  has  not  been  reprinted.  —  Ed. 


242  DISTRICT   OF    COLUMBIA.    ETC. 

The  powers  delegated  by  the  people  to  their  agents  arc  not 
enlarged  by  the  expansion  of  the  domain  within  which  they  are 
exercised.  When  the  restriction  on  the  exercise  of  a  particular 
power  by  a  particular  agent  is  ascertained,  that  is  an  end  of  the 
question.  .  .  . 

The  prohibitory  clauses  of  the  Constitution  are  many,  and 
they  have  been  repeatedly  given  effect  by  this  court  in  respect 
of  the  Territories  and  the  District  of  Columbia.  .  .  . 

Many  of  the  later  cases  were  brought  from  territories  over 
which  Congress  had  professed  to  "  extend  the  Constitution,"  or 
from  the  District  after  similar  provision,  but  the  decisions  did 
not  rest  upon  the  view  that  the  restrictions  on  Congress  were 
self-imposed,  and  might  be  withdrawn  at  the  pleasure  of  that 
body.'^  .  .  . 

The  power  of  the  United  States  to  acquire  territory  by  con- 
quest, by  treaty,  or  by  discovery  and  occupation,  is  not  disputed, 
nor  is  the  proposition  that  in  all  international  relations,  inter- 
ests, and  responsibilities  the  United  States  is  a  separate,  inde- 
pendent, and  sovereign  nation;  but  it  does  not  derive  its  powders 
from  international  law,  which,  though  a  part  of  our  municipal 
law,  is  not  a  part  of  the  organic  law  of  the  land.  The  source 
of  national  power  in  this  country  is  the  Constitution  of  the 
United  States;  and  the  government,  as  to  our  internal  affairs, 
possesses  no  inherent  sovereign  power  not  derived  from  that  in- 
strument, and  inconsistent  with  its  letter  and  spirit. 

Doubtless  the  subjects  of  the  former  sovereign  are  brought 
by  the  transfer  under  the  protection  of  the  acquiring  power, 
and  are  so  far  forth  impressed  with  its  nationality,  but  it  does  not 
follow  that  they  necessarily  acquire  the  full  status  of  citizens.  .  .  . 

Great  stress  is  thrown  upon  the  word  "  incorporation,"  as  if 
possessed  of  some  occult  meaning,  but  I  take  it  that  the  act 
under  consideration  made  Porto  Rico,  whatever  its  situation 
before,  an  organized  territory  of  the  United  States.  Being 
such,  and  the  act  undertaking  to  impose  duties  by  virtue  of 
clause  one  of  section  8,  how  is  it  that  the  rule  which  quahfies 
the  power  does  not  apply  to  its  exercise  in  respect  of  commerce 
with  that  territory  ?  .  .  . 

1  Here  were  discussed  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1  (1899); 
Bauman  v.  Ross,  167  U.  S.  548  (1897);  Callan  v.  Wilson,  ante,  p.  210  (1888); 
Thompson  v.  Utah,  170  U.  S.  343  (1898);  American  Insurance  Co.  v.  Canter, 
ante,  p.  191  (1828),  and  other  cases.  —  Ed. 


DOWNES    V.    BIDWELL.  243 

The  concurring  opinion  recognizes  the  fact  that  Congress,  in 
deahng  with  the  people  of  new  territories  or  possessions,  is  bound 
to  respect  the  fundamental  guarantees  of  life,  liberty,  and  prop- 
erty, but  assumes  that  Congress  is  not  bound,  in  those  territories 
or  possessions,  to  follow  the  rules  of  taxation  prescribed  by  the 
Constitution.  And  yet  the  power  to  tax  involves  the  power 
to  destroy,  and  the  le\'^'  of  duties  touches  all  our  people  in  all 
places  under  the  jurisdiction  of  the  government. 

The  logical  result  is  that  Congress  may  prohibit  commerce 
altogether  between  the  States  and  territories,  and  may  prescribe 
one  rule  of  taxation  in  one  territory,  and  a  different  rule  in 
another. 

That  theory  assumes  that  the  Constitution  created  a  govern- 
ment empowered  to  acquire  countries  throughout  the  world  to 
be  governed  by  different  rules  than  those  obtaining  in  the  orig- 
inal States  and  territories,  and  substitutes  for  the  present  sys- 
tem of  republican  government,  a  system  of  domination  over 
distant  provinces  in  the  exercise  of  unrestricted  power. 

In  our  judgment,  so  much  of  the  Porto  Rican  act  as  author- 
ized the  imposition  of  these  duties  is  invalid,  and  plaintiffs  were 
entitled  to  recover. 

Some  argument  was  made  as  to  general  consequences  appre- 
hended to  flow  from  this  result,  but  the  language  of  the  Con- 
stitution is  too  plain  and  unambiguous  to  permit  its  meaning 
to  be  thus  influenced.  .  .  } 

1  Some  of  these  so-called  Insular  Cases  dealt  with  statutory  construction 
and  others  dealt  with  constitutionahty.  De  Lima  v.  BidweU,  182  U.  S.  1 
(1901),  and  Dooley  v.  United  States,  182  U.  S.  222  (1901),  held,  respectively, 
that  the  tariff  act  of  1897  did  not,  after  the  cession  of  Porto  Rico,  continue  to 
apply  to  shipments  from  Porto  Rico  to  the  United  States  or  to  shipments  from 
the  United  States  to  Porto  Rico,  that  island  having  ceased  to  be  included 
among  "  foreign  countries  "  within  the  meaning  of  the  act;  and  Fourteen 
Diamond  Rings  v.  United  States,  183  U.  S.  176  (1901),  appUed  the  same 
doctrine  to  shipments  to  the  United  States  from  the  Phihppines.  On  the 
other  hand,  Dooley  v.  United  States,  183  U.  S.  151  (1901),  dealt  with  con- 
stitutionahty, upholding  new  statutory  duties  on  shipments  from  the  United 
States  to  Porto  Rico,  the  island  not  having  been  incorporated  into  the  United 
States  and  not  having  been  brought  thus  within  the  constitutional  provisions 
requiring  duties  to  be  uniform  throughout  the  United  States  and  forbidding 
duties  on  goods  exported  from  any  State. 

See  Gonzales  v.  Williams,  192  U.  S.  1  (1904)  —  citizens  of  Porto  Rico  not 
"  aliens  "  within  the  meaning  of  the  immigration  act  of  March  3,  1891. 

See  also  Faber  v.  United  States,  221  U.  S.  649  (1911)  —  Phihppine  Islands 
not  "  other  countries  "  within  the  meaning  of  the  commercial  convention  of 
1903  with  Cuba.  —  Ed. 


244  DISTRICT   OF   COLUMBIA,    ETC. 

HAWAII   V.   MANKICHI. 
Supreme  Court  of  the  United  States.     1903. 

[190  United  States,  197.] ' 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Territory  of  Hawaii. 

This  was  a  petition  for  a  writ  of  habeas  corpus  by  a  person 
imprisoned  after  conviction  of  manslaughter  by  verdict  of  only 
nine  out  of  twelve  jurors  proceeding  under  an  indictment,  not 
found  b}^  a  grand  jury,  but  in  the  form  of  an  information  filed  by 
the  Attorney  General  and  indorsed  "  a  true  bill  found  this  fourth 
day  of  May,  A.  D.  1899.  A.  Perry,  First  Judge  of  the  Circuit 
Court." 

The  Territory  appealed  from  an  order  discharging  the  prisoner. 

Dole,  Attorney  General  of  Hawaii,  and  Richards,  Solicitor  Gen- 
eral of  the  United  States,  for  appellant;  and  F.  R.  Coudert,  Jr., 
and  others,  contra. 

Brown,  J.,     ...  delivered  the  opinion  of  the  court.  .  .  . 

By  a  joint  resolution  adopted  by  Congress,  July  7,  1898,  30 
Stat.  750,  known  as  the  Newlands  resolution,  and  with  the  con- 
sent of  the  Republic  of  Hawaii,  signified  in  the  manner  provided 
in  its  constitution,  the  Hawaiian  Islands,  and  their  dependencies, 
were  annexed  "  as  a  part  of  the  territory  of  the  United  States, 
and  subject  to  the  sovereign  dominion  thereof,"  with  the  follow- 
ing condition:  "The  municipal  legislation  of  the  Hawaiian 
Islands,  not  enacted  for  the  fulfillment  of  the  treaties  so  ex- 
tinguished, and  not  inconsistent  with  this  joint  resolution  nor 
contrary  to  the  Constitution  of  the  United  States  nor  to  any 
existing  treaty  of  the  United  States,  shall  remain  in  force  until  the 
Congress  of  the  United  States  shall  otherwise  determine."  .  .  . 
The  formal  transfer  w^as  not  made  until  August  12,  when,  at 
noon  of  that  day,  the  American  flag  was  raised  over  the  govern- 
ment house,  and  the  islands  ceded  with  appropriate  ceremonies 
to  a  representative  of  the  United  States.  Under  the  conditions 
named  in  this  resolution  the  Hawaiian  Islands  remained  under 
the  name  of  the  "  Republic  of  Hawaii  "  until  June  14,  1900, 
when  they  were  formally  incorporated  by  act  of  Congress  under 
the  name  of  the  "Territory  of  Hawaii."  31  Stat.  141.  By 
this  act  the  Constitution  was  formally  extended  to  these  islands, 

^  The  statement  has  not  been  reprinted.  —  Ed. 


HAWAII    V.    MANKICHI.  245 

sec.  5,  and  special  provisions  made  for  empanelling  grand  juries 
and  for  unanimous  verdicts  of  petty  juries.     Sec.  83. 

The  question  is  whether,  in  continuing  the  municipal  legis- 
lation of  the  islands  not  contrary  to  the  Constitution  of  the  United 
States,  it  was  intended  to  abohsh  at  once  the  criminal  procedure 
theretofore  in  force  upon  the  islands,  and  to  substitute  immedi- 
ately and  without  new  legislation  the  common  law  proceedings 
by  grand  and  petit  jury,  which  had  been  held  applicable  to  other 
organized  Territories,  Webster  v.  Reid,  11  How.  437;  American 
Publishing  Co.  v.  Fisher,  166  U.  S.  464;  Thompson  v.  Utah,  170 
U.  S.  343,  though  we  have  also  held  that  the  States,  when  once 
admitted  as  such,  may  dispense  with  grand  juries,  Hurtado  v. 
California,  110  U.  S.  516;  and  perhaps  allow  verdicts  to  be 
rendered  by  less  than  a  unanimous  vote.  American  Publishing 
Co.  V.  Fisher,  166  U.  S.  464;  Thompson  v.  Utah,  170  U.  S.  343. 

In  fixing  upon  the  proper  construction  to  be  given  to  this  reso- 
lution, it  is  important  to  bear  in  mind  the  history  and  condition 
of  the  islands  prior  to  their  annexation  by  Congress.  Since  1847 
they  had  enjo3Td  the  blessings  of  a  civilized  government,  and 
a  system  of  jurisprudence  modelled  largely  upon  the  common 
law  of  England  and  the  United  States.  Though  lying  in  the 
tropical  zone,  the  salubrity  of  their  climate  and  the  fertility  of 
their  soil  had  attracted  thither  large  numbers  of  people  from 
Europe  and  America,  who  brought  with  them  political  ideas  and 
traditions  which,  about  sixty  years  ago,  found  expression  in  the 
adoption  of  a  code  of  laws  appropriate  to  their  new  conditions. 
Churches  were  founded,  sciiools  opened,  courts  of  justice  estab- 
lished, and  civil  and  criminal  laws  administered  upon  substan- 
tially the  same  principles  which  prevailed  in  the  two  countries 
from  which  most  of  the  immigrants  had  come.  Taking  the  lead, 
however,  in  a  change  which  has  since  been  adopted  by  several 
of  the  United  States,  no  provision  was  made  for  grand  juries, 
and  criminals  were  prosecuted  upon  indictments  found  by  judges. 
By  a  Jaw  passed  in  1847,  the  number  of  a  jury  was  fixed  at  twelve, 
but  a  verdict  might  be  rendered  upon  the  agreement  of  nine 
jurors.  The  question  involved  in  this  case  is  whether  it  was 
intended  that  this  practice  should  be  instantly  changed,  and  the 
criminal  procedure  embodied  in  the  Fifth  and  Sixth  Amend- 
ments to  the  Constitution  be  adopted  as  of  August  12,  1898, 
when  the  Hawaiian  flag  was  hauled  down  and  the  American  flag 
hoisted  in  its  place. 


246  DISTRICT  OF   COLUMBIA,   ETC. 

If  the  words  of  the  Newlands  resolution,  adopting  the  mu- 
nicipal legislation  of  Hawaii  not  contranj  to  the  Constitution  of 
the  United  States,  be  literally  applied,  the  petitioner  is  entitled 
to  his  discharge,  since  that  instrument  expressly  requires.  Amend- 
ment 5,  that  "  no  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury;  "  and,  Amendment  6,  that  "  in  all  crimi- 
nal prosecutions,  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed."  But  there  is 
another  question  underlying  this  and  all  other  rules  for  the  in- 
terpretation of  statutes,  and  that  is,  what  was  the  intention  of 
the  legislative  body  ?  .  .  . 

Is  there  any  room  for  construction  in  this  case,  or,  are  the 
words  of  the  resolution  so  plain  that  construction  is  impossible  ? 
There  are  many  reasons  which  induce  us  to  hold  that  the  act 
was  not  intended  to  interfere  with  the  existing  practice  when 
such  interference  would  result  in  imperiling  the  peace  and  good 
order  of  the  islands.  The  main  objects  of  the  resolution  were, 
1st,  to  accept  the  cession  of  the  islands  theretofore  made  by  the 
Republic  of  Hawaii,  and  to  annex  the  same  "  as  a  part  of  the 
territory  of  the  United  States  and  subject  to  the  sovereign  do- 
minion thereof  ";  2d,  to  abolish  all  existing  treaties  with  various 
nations,  and  to  recognize  only  treaties  between  the  United  States 
and  such  foreign  nations;  3d,  to  continue  the  existing  laws  and 
customs  regulations,  so  far  as  they  were  not  inconsistent  with  the 
resolution,  or  contrary  to  the  Constitution,  until  Congress  should 
otherwise  determine.  From  the  terms  of  this  resolution  it  is 
evident  that  it  was  intended  to  be  merely  temporary  and  pro- 
visional; that  no  change  in  the  government  was  contemplated, 
and  that  until  further  legislation  the  Republic  of  Hawaii  con- 
tinued in  existence.  Even  its  name  was  not  changed  until  1900, 
when  the  "  Territory  of  Hawaii  "  was  organized.  The  laws  of 
the  United  States  were  not  extended  over  the  islands  until  the 
organic  act  was  passed  on  April  30,  1900,  when,  so  careful  was 
Congress  not  to  disturb  the  existing  condition  of  things  any 
further  than  was  necessary,  it  was  provided,  sec.  5,  that  only 
"  the  laws  of  the  United  States,  which  are  not  locally  inappli- 
cable, shall  have  the  same  force  and  effect  within  the  said  Terri- 
tory as  elsewhere  in  the  United  States."  .  .  . 

Of  course,  under  the  Newlands  resolution,  any  new  legis- 
lation must  conform  to  the  Constitution  of  the  United  States, 


HAWAII   V.   MANKICHI.  247 

but  how  far  the  exceptions  to  the  existing  municipal  legislation 
were  intended  to  abolish  existing  laws,  must  depend  somewhat 
upon  circumstances.  Where  the  immediate  apphcation  of  the 
Constitution  required  no  new  legislation  to  take  the  place  of 
that  which  the  Constitution  abohshed,  it  may  be  well  held  to 
have  taken  immediate  effect;  but  where  the  application  of  a  pro- 
cedure hitherto  well  known  and  acquiesced  in,  left  nothing  to 
take  Its  place,  without  new  legislation,  the  result  might  be  so 
disastrous  that  we  might  well  say  that  it  could  not  have  been 
within  the  contemplation  of  Congress. 

If  the  negative  words  of  the  resolution,  "  nor  contrary  to  the 
Constitution  of  the  United  States,"  be  construed  as  unposing 
upon  the  islands  every  provision  of  a  Constitution,  which  must 
have  been  unfamiliar  to  a  large  number  of  their  inhabitants, 
and  for  which  no  previous  preparation  had  been  made,  the  con- 
sequences in  this  particular  connection  would  be  that  every 
criminal  in  the  Hawaiian  Islands  convicted  of  an  infamous  offence 
between  August  12,  1898,  and  June  14,  1900,  when  the  act  organiz- 
ing the  territorial  government  took  effect,  must  be  set  at  large; 
and  every  verdict  in  a  civil  case  rendered  by  less  than  a  unani- 
mous jury  held  for  naught.  Surely  such  a  result  could  not  have 
been  within  the  contemplation  of  Congress. 

Inasmuch  as  we  are  of  opinion  that  the  status  of  the  islands 
and  the  powers  of  their  provisional  government  were  measured 
by  the  Newlands  resolution,  and  the  case  has  been  argued  upon 
that  theorj^,  we  have  not  deemed  it  necessary  to  consider  what 
would  have  been  its  position  had  the  important  words  "nor 
contrary  to  the  Constitution  of  the  United  States  "  been  omit- 
ted, or  to  reconsider  the  questions  which  arose  in  the  Insular 
Tariff  cases  regarding  the  power  of  Congress  to  annex  territory 
Tv^thout  at  the  same  time  extending  the  Constitution  over  it. 
Of  course,  for  the  reasons  already  stated,  the  questions  involved 
in  this  case  could  arise  only  from  such  as  occurred  between  the 
taking  effect  of  the  joint  resolution  of  July  7,  1898,  and  the  act 
of  April  30,  1900,  establishing  the  territorial  government. 

The  decree  of  the  District  Court  for  the  Territory  of  Hawaii  must 
be  reversed,  and  the  case  remanded  to  that  court  with  instructions 
to  dismiss  the  petition.^ 

^  Ace:  Dorr  v.  United  States,  195  U.  S.  138  (1904),  as  to  Philippine  Is- 
lands. —  Ed. 


248  DISTRICT   OF    COLUMBIA,    ETC. 

White,  J.,  and  McKenna,  J.,  concurring. 

The  court  in  its  opinion  disposes  of  the  case  solely  by  a  con- 
struction of  the  act  of  Congress.  Conceding,  arguendo,  that 
such  view  is  wholly  adequate  to  decide  the  cause,  I  concur  in 
the  meaning  of  the  act  as  expounded  in  the  opinion  of  the  court, 
and  in  the  main  with  the  reasoning  by  which  that  interpreta- 
tion is  elucidated.  I  prefer,  however,  to  place  my  concurrence 
in  the  judgment  upon  an  additional  ground  which  seems  to  be 
more  fundamental.  That  ground  is  this:  That  as  a  consequence 
of  the  relation  which  the  Hawaiian  Islands  occupied  towards  the 
United  States,  growing  out  of  the  resolution  of  annexation,  the 
provisions  of  the  Fifth  and  Sixth  Amendments  of  the  Constitu- 
tion concerning  grand  and  petit  juries  were  not  applicable  to 
that  territory,  because,  whilst  the  effect  of  the  resolution  of 
annexation  was  to  acquire  the  islands  and  subject  them  to  the 
sovereignty  of  the  United  States,  neither  the  terms  of  the  resolu- 
tion nor  the  situation  which  arose  from  it  served  to  incorporate 
the  Hawaiian  Islands  into  the  United  States  and  make  them  an 
integral  part  thereof.  In  other  words,  in  my  opinion,  the  case 
is  controlled  by  the  decision  in  Downes  v.  Bidwell,  182  U.  S.  244. 

The  resolution  of  Congress  annexing  the  islands,  it  seems  to 
me,  makes  the  conclusion  just  stated  quite  clear,  and  manifests 
that  it  was  not  intended  to  incorporate  the  islands  eo  instanti,  but 
on  the  contrary,  that  the  purpose  was,  whilst  acquiring  them, 
to  leave  the  permanent  relation  which  they  were  to  bear  to  the 
Government  of  the  United  States  to  await  the  subsequent  de- 
termination of  Congress.  By  the  resolution  the  islands  were 
annexed,  not  absolutely,  but  merely  "as  a  part  of  the  terri- 
tory of  the  United  States,"  and  were  simply  declared  to  be  sub- 
ject to  its  sovereignty.  .  .  . 

Fuller,  C.  J.,  with  whom  concurred  Harlan,  Brewer,  and 
Peckham,  JJ.,  dissenting.  .  .  . 


BINNS   r.    TNITED    STATES. 


249 


BINNS  V.   UNITED  STATES. 

Supreme  Court  of  the  United  States.     1904. 
[194  United  States,  486.]  i 

Error  to  the  District  Court  of  the  United  States  for  the  Dis- 
trict of  Alaska. 

The  plaintiff  in  error  was  prosecuted  and  convicted  under  an 
act  of  Congress  which  made  it  a  misdemeanor  to  do  business  in 
Alaska  as  a  transfer  company  without  paying  fifty  dollars  annu- 
ally for  a  license;  and  thereupon  the  conviction  was  brought  to 
the  Supreme  Court  by  writ  of  error,  the  question  being  whether 
there  was  conflict  between  the  statute  and  the  Constitution  of 
the  United  States,  Art.  I,  sect.  8,  clause  1. 

J.  C.  Campbell  and  W.  H.  Melson,  for  plaintiff  in  error;  and 
Purdy,  Assistant  Attorney  General,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  contention  of  plaintiff  in  error  is  that  the  license  tax  is  an 
excise,  that  it  is  laid  and  collected  "  to  pay  the  debts  and  pro- 
vide for  the  common  defence  and  general  welfare  of  the  United 
States,"  because  by  section  463  it  is  provided  that  "  all  moneys 
received  for  licenses  .  .  .  under  this  act  shall  ...  be  covered 
into  the  Treasury  of  the  United  States,"  that  it  is  imposed  only 
in  Alaska,  and  is  not  "  uniform  throughout  the  United  States." 

It  is  unnecessary  to  consider  the  decisions  in  the  Insular  cases, 
for,  as  said  by  Mr.  Justice  White  in  his  concurring  opinion  in 
Do'T^^les  v.  Bidwell,  182  U.  S.  244,  335:  "Without  referring  in 
detail  to  the  acquisition  from  Russia  of  Alaska,  it  suffices  to  say 
that  that  treaty  also  contained  provisions  for  incorporation  and 
was  acted  upon;  "  and  by  Mr.  Justice  Gray,  in  his  concurring 
opinion:  "The  cases  now  before  the  court  do  not  touch  the 
authority  of  the  United  States  over  the  Territories,  in  the  strict 
and  technical  sense,  being  those  which  lie  within  the  United 
States,  as  bounded  by  the  Atlantic  and  Pacific  Oceans,  the  Do- 
minion of  Canada  and  the  Republic  of  Mexico,  and  the  Terri- 
tories of  Alaska  and  Hawaii;  but  they  relate  to  territory,  in  the 
broader  sense,  acquired  by  the  United  States  by  war  with  a 
foreign  State." 

It  had  been  theretofore  held  by  this  court  in  Steamer  Co- 
quitlam  v.  United  States,  163  U.  S.  346,  352,  that  "  Alaska  is 

1  The  statement  has  not  been  reprinted.  —  Ed. 


250  DISTRICT   OF    COLUMBIA,    ETC. 

one  of  the  Territories  of  the  United  States.  It  was  so  desig- 
nated in  that  order  (the  order  assigning  the  Territory  to  the 
Ninth  Judicial  Circuit)  and  has  always  been  so  regarded.  And 
the  court  established  by  the  act  of  1884  is  the  court  of  last  resort 
within  the  limits  of  that  Territory."  Nor  can  it  be  doubted  that 
it  is  an  organized  Territory,  for  the  act  of  May  17,  1884,  23  Stat. 
24,  entitled  "  An  act  providing  a  civil  government  for  Alaska," 
provided:  "That  the  territory  ceded  to  the  United  States  by 
Russia  by  the  treaty  of  March  thirtieth,  eighteen  hundred  and 
sixty-seven,  and  known  as  Alaska,  shall  constitute  a  civil  and 
judicial  district,  the  government  of  which  shall  be  organized  and 
administered  as  hereinafter  provided."  See  also  31  Stat.  321, 
sec.  1. 

We  shall  assume  that  the  purpose  of  the  license  fees  required 
by  section  460  is  the  collection  of  revenue,  and  that  the  license 
fees  are  excises  within  the  constitutional  sense  of  the  terms. 
Nevertheless  we  are  of  opinion  that  they  are  to  be  regarded  as 
local  taxes  imposed  for  the  purpose  of  raising  funds  to  support 
the  administration  of  local  government  in  Alaska. 

It  must  be  remembered  that  Congress,  in  the  government 
of  the  Territories  as  well  as  of  the  District  of  Columbia,  has 
plenary  power,  save  as  controlled  by  the  provisions  of  the  Con- 
stitution, that  the  form  of  goverrmient  it  shall  establish  is  not 
prescribed,  and  may  not  necessarily  be  the  same  in  all  the  Terri- 
tories. .  .  .  For  Alaska,  Congress  .  .  .  has  provided  no  legis- 
lative body  but  only  executive  and  judicial  officers.  It  has 
enacted  a  penal  and  civil  code.  Having  created  no  legislative 
body  and  provided  for  no  local  legislation  in  respect  to  the 
matter  of  revenue,  it  has  established  a  revenue  system  of  its 
own,  appHcable  alone  to  that  Territory.  Instead  of  raising  rev- 
enue by  direct  taxation  upon  property,  it  has,  as  it  may  rightfully 
do,  provided  for  that  revenue  by  means  of  license  taxes. 

In  reference  to  the  power  of  Congress  reference  may  be  had 
to  Gibbons  v.  District  of  Columbia,  116  U.  S.  404,  in  which  it  was 
held  that  "it  is  within  the  constitutional  power  of  Congress, 
acting  as  the  local  legislature  of  the  District  of  Columbia,  to 
tax  different  classes  of  property  within  the  District  at  different 
rates  ";  and  further,  after  referring  to  the  case  of  Loughborough 
V.  Blake,  5  Wheat.  317,  it  was  said: 

"  The  power  of  Congress,  legislating  as  a  local  legislature  for 
the  District,  to  levy  taxes  for  district  purposes  only,  in  like  manner 
as  the  legislature  of  a  State  may  tax  the  people  of  a  State  for 


BINNS   V.    UNITED    STATES.  251 

state  purposes,  was  expressly  admitted,  and  has  never  since  been 
doubted.  5  ^^^leat.  318;  Welch  y.  Cook,  97  U.  S.  541;  Mattingly 
V.  District  of  Columbia,  97  U.  S.  687.  In  the  exercise  of  this 
power  Congress,  like  any  state  legislature  unrestricted  by  con- 
stitutional pro\'isions,  may  at  its  discretion  wholly  exempt  certain 
classes  of  property  from  taxation,  or  may  tax  them  at  a  lower 
rate  than  other  property." 

In  view  of  this  decision  it  would  not  be  open  to  doubt  that, 
if  the  act  had  provided  for  a  local  treasurer  to  whom  these  local 
taxes  should  be  paid  and  directed  that  the  proceeds  be  used 
solely  in  pajTnent  of  the  necessary  expenses  of  the  government  of 
Alaska,  its  constitutionality  would  be  clear,  but  the  contention 
is  that  the  statute  requires  that  the  proceeds  of  these  hcenses 
shall  be  paid  into  the  Treasury  of  the  United  States,  from  which, 
of  course,  they  can  only  be  taken  under  an  act  of  Congress  making 
specific  appropriation.  In  fact,  all  the  expenses  of  the  Terri- 
tory are,  in  pursuance  of  statute,  paid  directly  out  of  the  United 
States  Treasury.  Act  of  June  6,  1900,  Title  I,  sections  2  and  10, 
31  Stat.  322,  325;  Act  of  March  3,  1901,  31  Stat.  960,  987;  April 
28,  1902,  32  Stat.  120,  147,  and  February  25,  1903,  32  Stat.  854, 
882.  True,  there  are  some  special  provisions  for  revenues  and 
their  application.  Thus,  the  fees  for  issuing  certificates  of  ad- 
mission to  the  bar  and  for  commissions  to  notaries  public  are  to 
be  retained  by  the  secretary  of  the  district  and  "  kept  in  a  fund 
to  be  known  as  the  District  Historical  Library  Fund  "  and  de- 
signed for  "  establishing  and  maintaining  the  district  historical 
hbrary  and  museum,"  act  of  June  6,  1900,  Title  I,  sec.  32,  31  Stat. 
333,  and  municipal  corporations  are  authorized  to  impose  certain 
taxes  for  local  purposes.  Title  III,  sec.  201,  31  Stat.  521.  By 
section  203,  fifty  per  cent  of  all  the  hcense  moneys  collected  within 
the  limits  of  such  corporations  are  to  be  paid  to  their  treasurers 
to  be  used  for  school  purposes.  By  subsequent  legislation,  31 
Stat.  1438,  it  is  provided  that  if  the  amount  thus  paid  is  not  all 
required  for  school  purposes  the  District  Court  may  authorize 
the  expenditure  of  the  surplus  for  any  municipal  purpose.  And 
by  the  same  statute  it  is  also  provided  that  fifty  per  cent  of  all 
license  moneys  collected  outside  municipal  corporations  and 
covered  into  the  Treasury  of  the  United  States  shall  be  set  aside 
to  be  expended  for  school  purposes  outside  the  municipahties. 
By  still  later  legislation  (although  that  was  enacted  after  the 
commencement  of  this  prosecution,  32  Stat.  946),  the  entire 
proceeds  of  license  taxes  ^\dthin  the  Umits  of  municipal  corpora- 


252  DISTRICT   OF   COLUMBIA,    ETC. 

tions  are  to  be  paid  to  the  treasurer  of  the  corporation,  for  school 
and  municipal  purposes. 

But  outside  of  these  special  matters  there  are  no  provisions 
for  collecting  revenue  within  the  Territory  for  the  expenses 
of  the  territorial  government  other  than  these  license  taxes  and 
charges  of  a  similar  nature.  .  .  . 

The  question  may  then  be  stated  in  this  form:  Congress  has 
undoubtedly  the  power  by  direct  legislation  to  impose  these 
license  taxes  upon  the  residents  of  Alaska,  providing  that  when 
collected  they  are  paid  to  a  treasurer  of  the  Territory  and  dis- 
bursed by  him  solely  for  the  needs  of  the  Territory.  Does  the 
fact  that  they  are  ordered  to  be  paid  into  the  Treasury  of  the 
United  States  and  not  specifically  appropriated  to  the  expenses 
of  the  Territory,  when  the  sum  total  of  these  and  all  other  revenues 
from  the  Territory  does  not  equal  the  cost  and  expense  of  main- 
taining its  government,  make  them  unconstitutional  ?  In 
other  words,  if,  under  any  circumstances  Congress  has  the  power 
to  levy  and  collect  these  taxes  for  the  expenses  of  the  territorial 
goverrmient,  is  it  essential  to  their  validity  that  the  proceeds 
therefrom  be  kept  constantly  separate  from  all  other  moneys 
and  specifically  and  solely  appropriated  to  the  interests  of  the 
Territory  ?  We  do  not  think  that  the  constitutional  power  of 
Congress  in  this  respect  depends  entirely  on  the  mode  of  its 
exercise.  If  it  satisfactorily  appears  that  the  purpose  of  these 
license  taxes  is  to  raise  revenue  for  use  in  Alaska,  and  that  the 
total  revenues  derived  from  Alaska  are  inadequate  to  the  ex- 
penses of  the  Territory,  so  that  Congress  has  to  draw  upon  the 
general  funds  of  the  Nation,  the  taxes  must  be  held  valid.  That 
the  purpose  of  these  taxes  was  to  raise  revenue  in  Alaska  for 
Alaska  is  obvious.  They  were  authorized  in  statutes  dealing 
solely  with  Alaska.  There  is  no  provision  for  a  direct  prop- 
erty tax  lo  be  collected  in  Alaska  for  the  general  expenses  of 
the  Territory.  The  entire  mone3^s  collected  from  these  license 
taxes  and  otherwise  from  Alaska  are  inadequate  for  the  expenses 
of  that  Territory.  So  far  as  we  may  properly  refer  to  the  pro- 
ceedings in  Congress,  they  affirm  that  these  hcense  taxes  are 
charges  upon  the  citizens  of  Alaska  for  the  support  of  its  govern- 
ment. While  it  is  generally  true  that  debates  in  Congress  are 
not  appropriate  sources  of  information  from  which  to  discover 
the  meaning  of  the  language  of  a  statute  passed  by  that  body, 
United  States  v.  Freight  Association,  166  U.  S.  290,  318,  yet  it 
is  also  true  that  we  have  examined  the  reports  of  the  committees 


BINNS   V.    UNITED    STATES.  253 

of  either  body  with  a  view  of  determining  the  scope  of  statutes 
passed  on  the  strength  of  such  reports.  Holy  Trinity  Church 
V.  United  States,  143  U.  S.  457,  464.  When  Sections  461  and  462 
were  under  consideration  in  the  Senate  the  chairman  of  the 
Committee  on  Territories,  in  response  to  inquiries  from  Senators, 
made  these  rephes: 

"  The  Committee  on  Territories  have  thoroughly  investigated 
the  condition  of  affairs  in  Alaska  and  have  prepared  certain 
licenses  which  in  their  judgment  will  create  a  revenue  suffi- 
cient to  defray  all  the  expenses  of  the  government  of  the  Terri- 
tory of  Alaska.  .  .  .  They  are  licenses  peculiar  to  the  condition 
of  afTairs  in  the  Territory  of  Alaska  on  certain  lines  of  goods, 
articles  of  commerce,  etc.,  which,  in  the  judgment  of  the  com- 
mittee, should  bear  a  hcense,  inasmuch  as  there  is  no  taxation 
whatever  in  Alaska.  Not  one  dollar  of  taxes  is  raised  on  any 
kind  of  property  there.  It  is  therefore  necessary  to  raise  revenue 
of  some  kind,  and  in  the  judgment  of  the  Committee  on  Terri- 
tories, after  consultation  A\ith  prominent  citizens  of  the  Territory 
of  Alaska,  including  the  governor  and  several  other  officers, 
this  code  or  list  of  licenses  was  prepared  by  the  committee.  .  .  ." 
Vol.  32,  Congressional  Record,  Part  III,  page  2235.  .  .  . 

In  order  to  avoid  any  misapprehension  we  may  add  that  this 
opinion  must  not  be  extended  to  any  case,  if  one  should  arise, 
in  which  it  is  apparent  that  Congress  is,  by  some  special  system 
of  license  taxes,  seeking  to  obtain  from  a  Territory  of  the  United 
States  revenue  for  the  benefit  of  the  nation  as  distinguished  from 
that  necessary  for  the  support  of  the  territorial  government. 

We  see  no  error  in  the  record,  and  the  judgment  is 

Affirmed. 

Harlan,  J.,  took  no  part  in  the  decision  of  this  case. 


254  DISTRICT   OF   COLUMBIA,    ETC. 

RASSMUSSEN  v.   UNITED   STATES. 
Supreme  Court  of  the  United  States.     1905. 

[197  United  States,  51G.] 

Error  to  the  District  Court  of  the  United  States  for  the  Dis- 
trict of  Alaska. 

The  facts  are  stated  in  the  opinion. 

R.  W.  Jennings  and  W.  E.  Crews,  for  plaintiff  in  error;  and 
Robh,  Assistant  Attorney  General,  contra. 

White,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  for  violating  section  127 
of  the  Alaska  Code,  prohibiting  the  keeping  of  a  disreputable 
house  and  punishing  the  offense  by  a  fine  or  imprisonment  in 
the  county  jail. 

As  stated  in  the  bill  of  exceptions,  when  the  case  was  called 
the  court  announced  "  that  the  cause  would  be  tried  before  a 
jury  composed  of  six  jurors,"  in  accordance  with  section  171 
of  the  Code  for  Alaska  adopted  by  Congress,  wherein,  among 
other  things,  it  was  provided  -as  follows  (31  Stat.  321,  359): 
"  That  hereafter  in  trials  for  misdemeanors  six  persons  shall 
constitute  a  legal  jury."  To  this  announcement  l)y  the  court 
an  exception  was  duly  preserved.  A  jury  of  six  persons  was 
then  empanelled,  when  the  objection  was  renewed  and  a  demand 
made  for  a  common  law  jury,  which  was  refused,  and  an  excep- 
tion was  again  taken. 

To  a  verdict  and  judgment  of  conviction  this  writ  is  prose- 
cuted directly  to  this  court,  reliance  for  a  reversal  })eing  had  on 
the  violation  of  the  Constitution  alleged  to  have  resulted  from 
the  trial  of  the  case  by  a  jury  of  six  persons  and  upon  other  errors 
of  law  which,  it  is  asserted,  the  court  committed  in  the  course 
of  the  trial. 

At  the  threshold  of  the  case  lies  the  constitutional  question 
whether  Congress  had  power  to  deprive  one  accused  in  Alaska 
of  a  misdemeanor  of  trial  by  a  common  law  jury,  that  is  to  say, 
whether  the  provision  of  the  act  of  Congress  in  question  was 
repugnant  to  the  Sixth  Amendment  to  the  Constitution  of  the 
United  States. 

At  the  bar  the  Government  did  not  deny  that  offenses  of  the 
character  of  the  one  here  prosecuted  could  only  be  tried  by  a 
common  law  jury,  if  the  Sixth  Amendment  governed.  The 
Government,  moreover,  did  not  dispute  the  obvious  and  funda- 


RASSMUSSEN   V.    UNITED    STATES.  255 

mental  truth  that  the  Constitution  of  the  United  States  is  domi- 
nant where  appHcable.  The  vahdity  of  the  provision  in  question 
is  therefore  sought  to  be  sustained  upon  the  proposition  that  the 
Sixth  Amendment  to  the  Constitution  did  not  apply  to  Congress 
in  legislating  for  Alaska.  And  this  rests  upon  two  contentions 
which  we  proceed  separately  to  consider. 

1.  Alaska  was  not  incorporated  into  the  United  States,  and 
therefore  the  Sixth  Amendment  did  not  control  Congress  in  legis- 
lating for  Alaska.  ... 

We  are  brought  then  to  determine  whether  Alaska  has  been 
incorporated  into  the  United  States  as  a  part  thereof,  or  is  simply 
held,  as  the  Philippine  Islands  are  held,  under  the  sovereignty 
of  the  United  States  as  a  possession  or  dependency.  ,  .  . 

The  treaty  concerning  Alaska,  instead  of  exhibiting,  as  did 
the  treaty  respecting  the  Philippine  Islands,  the  determination 
to  reserve  the  question  of  the  status  of  the  acquired  territory 
for  ulterior  action  by  Congress,  manifested  a  contrary  inten- 
tion, since  it  is  therein  expressly  declared,  in  Article  3,  that: 
"  The  inhabitants  of  the  ceded  territory  shall  be  admitted 
to  the  enjoyment  of  all  the  rights,  advantages  and  immunities 
of  citizens  of  the  United  States;  and  shall  be  maintained  and 
protected  in  the  free  enjoyment  of  their  liberty,  property  and 
religion." 

This  declaration,  although  somewhat  changed  in  phrase- 
ology, is  the  equivalent,  as  pointed  out  in  Downes  v.  Bidwell, 
of  the  formula  employed  from  the  beginning  to  express  the  pur- 
pose to  incorporate  acquired  territory  into  the  United  States, 
especially  in  the  absence  of  other  provisions  showing  an  inten- 
tion to  the  contrary.  .  .  . 

That  Congress,  shortly  following  the  adoption  of  the  treaty 
with  Russia,  clearly  contemplated  the  incorporation  of  Alaska 
into  the  United  States  as  a  part  thereof,  we  think  plainly  results 
from  the  act  of  July  20,  1868,  concerning  internal  revenue  taxa- 
tion, c.  186,  section  107,  15  Stat.  125,  167,  and  the  act  of  July 
27,  1868,  c.  273,  extending  the  laws  of  the  United  States  relating 
to  customs,  commerce  and  navigation  over  Alaska  and  estab- 
Hshing  a  collection  district  therein.  15  Stat.  240.  And  this  is 
fortified  by  subsequent  action  of  Congress,  which  it  is  unnecessary 
to  refer  to. 

Indeed,  both  before  and  since  the  decision  in  Downes  v.  Bid- 
well  the  status  of  Alaska  as  an  incorporated  Territory  was  and  has 
been  recognized  by  the  action  and  decisions  of  this  court.      By 


25G  DISTRICT   OF    COLUMBIA,    ETC. 

the  sixth  section  of  the  judiciary  act  of  March  3,  1891,  26  Stat. 
826,  it  was  made  the  duty  of  this  court  to  assign  the  several 
Territories  of  the  United  States  to  particular  circuits;  and  in 
execution  of  this  law  this  court,  by  an  order  promulgated  May 
11,  1891,  assigned  the  Territory  of  Alaska  to  the  ninth  judicial 
circuit.  Steamer  Coquitlam  v.  United  States,  163  U.  S.  346.  .  .  . 
This  brings  us  to  the  second  proposition,  which  is: 
2.  That  even  if  Alaska  was  incorporated  into  the  United  States, 
as  it  was  not  an  organized  Territory,  therefore  the  provisions  of  the 
Sixth  Amendment  were  not  controlling  on  Congress  when  legislating 

for  Alaska. 

We  do  not  stop  to  demonstrate  from  original  considerations 
the  unsoundness  of  this  contention  and  its  irreconcilable  con- 
flict with  the  essential  principles  upon  which  our  constitutional 
system  of  government  rests.  Nor  do  we  think  it  is  required  to 
point  out  the  inconsistency  which  would  arise  between  various 
provisions  of  the  Constitution  if  the  proposition  was  admitted, 
or  the  extreme  extension  on  the  one  hand  and  the  undue  limita- 
tion on  the  other  of  the  powers  of  Congress  which  w^ould  be 
occasioned  by  conceding  it.  This  is  said,  because,  in  our  opinion, 
the  unsoundness  of  the  proposition  is  conclusively  established 
by  a  long  line  of  decisions.  Webster  v.  Reid,  11  How.  437;  Rey- 
nolds V.  United  States,  98  U.  S.  145;  Callan  v.  Wilson,  127  U.  S. 
540;  American  Publishing  Co.  v.  Fisher,  166  U.  S.  464;  Spring- 
ville  v.  Thomas,  166  U.  S.  707;  Thompson  v.  Utah,  170  U.  S.  343; 
Capital  Traction  Co.  v.  Hof,  174  U.  S.  1;   Black  v.  Jackson,  177 

U.  S.  349. 

The  argument  by  which  the  decisive  force  of  the  cases  just 
cited  is  sought  to  be  escaped  is  that  as  when  the  cases  were  de- 
cided there  was  legislation  of  Congress  extending  the  Constitu- 
tion to  the  District  of  Columbia  or  to  the  particular  territory 
to  which  a  case  may  have  related,  therefore  the  decisions  must 
be  taken  to  have  proceeded  alone  upon  the  statutes  and  not 
upon  the  inherent  application  of  the  provisions  of  the  Fifth, 
Sixth  and  Seventh  Amendments  to  the  District  of  Columbia  or 
to  an  incorporated  Territory.  And,  upon  the  assumption  that 
the  cases  are  distinguishable  from  the  present  one  upon  the 
basis  just  stated,  the  argument  proceeds  to  insist  that  the  Sixth 
Amendment  does  not  apply  to  the  Territory  of  Alaska,  because 
section  1891  of  the  Revised  Statutes  only  extends  the  Constitu- 
tion to  the  organized  Territories,  in  which,  it  is  urged,  Alaska  is 
not  embraced. 


RASSMUSSEN   V.    UNITED    STATES.  257 

Wliilst  the  premise  as  to  the  existence  of  legislation  declar- 
ing the  extension  of  the  Constitution  to  the  Territories  with 
which  the  cases  were  respectively  concerned  is  well  founded, 
the  conclusion  draAvn  from  that  fact  is  not  justified.  Without 
attempting  to  examine  in  detail  the  opinions  in  the  various 
cases,  in  our  judgment  it  clearly  results  from  them  that  they 
substantially  rested  upon  the  proposition  that  where  territory 
was  a  part  of  the  United  States  the  inhabitants  thereof  were 
entitled  to  the  guarantees  of  the  Fifth,  Sixth  and  Seventh  Amend- 
ments, and  that  the  act  or  acts  of  Congress  purporting  to  extend 
the  Constitution  were  considered  as  declaratory  merely  of  a 
result  which  existed  independently  by  the  inherent  operation  of 
the  Constitution.  It  is  true  that  in  some  of  the  opinions  both 
the  application  of  the  Constitution  and  the  statutory  provisions 
declaring  such  application  were  referred  to,  but  in  others  no 
reference  to  such  statutes  was  made,  and  the  cases  proceeded 
upon  a  line  of  reasoning,  leaving  room  for  no  other  view  than 
that  the  conclusion  of  the  court  was  rested  upon  the  self-operative 
application  of  the  Constitution.  Springville  v.  Thomas,  166 
U.  S.  707;  Thompson  v.  Utah,  170  U.  S.  343;  Capital  Traction 
Co.  V.  Hof,  174  U.  S.  1;  Black  v.  Jackson,  177  U.  S.  349.  .  .  . 

As  it  conclusively  results  from  the  foregoing  considerations 
that  the  Sixth  Amendment  to  the  Constitution  was  applicable 
to  Alaska,  and  as  of  course  being  applicable  it  was  controlling 
upon  Congress  in  legislating  for  Alaska,  it  follows  that  the  pro- 
vision of  the  act  of  Congress  under  consideration  depriving 
persons  accused  of  a  misdemeanor  in  Alaska  of  a  right  to  trial 
by  a  common  law  jury,  was  repugnant  to  the  Constitution  and 
void.  Having  disposed  of  the  constitutional  question,  we  deem 
it  unnecessary  to  review  the  other  alleged  errors. 

The  judgment  must  therefore  be  reversed  and  the  case  re- 
.manded  with  directions  to  set  aside  the  vercUct  and  grant  a 
new  trial.  -^nd  it  is  so  ordered. 

Harlan,  J.,  concurring.  .  .  . 

Immediately  upon  the  ratification  in  1867  of  the  treaty  by 
which  Alaska  was  acquired  from  Russia,  that  Territory,  as  I 
think,  came  under  the  complete,  sovereign  jurisdiction  and  au- 
thority of  the  United  States,  and,  without  any  formal  action 
on  the  part  of  Congress  in  recognition  or  enforcement  of  the 
treaty,  and  whether  Congress  cashed  such  a  result  or  not,  the  in- 
habitants of  that  Territory  became  at  once  entitled  to  the  benefit 


258  DISTRICT   OF    COLUMBIA,    ETC. 

of  all  the  guarantees  found  in  the  Constitution  of  the  United 
States  for  the  protection  of  hfe,  liberty,  and  property. 

After  such  ratification  no  person  charged  with  the  commis- 
sion of  a  crime  against  the  United  States  in  that  Territory  could 
be  legally  tried  therefor  otherwise  than  by  what  this  court  has 
adjudged  to  be  the  jury  of  the  Constitution. 

The  constitutional  requirement  that  "  the  trial  of  all  crimes, 
except  in  cases  of  impeachment,  shall  be  by  jury  "  means,  as 
this  court  has  adjudged,  a  trial  by  the  historical,  common  law 
jury  of  twelve  persons,  and  applies  to  all  crimes  against  the 
United  States  committed  in  any  territory,  however  acquired, 
over  which,  for  purposes  of  government,  the  United  States  has 
sovereign  dominion. 

No  tribunal  or  person  can  exercise  authority  involving  life, 
or  liberty,  in  any  territory  of  the  United  States,  organized  or 
unorganized,  except  in  harmony  with  the  Constitution. 

Congress  cannot  suspend  the  operation  of  the  Constitution 
in  any  territory  after  it  has  come  under  the  sovereign  authority 
of  the  United  States,  nor,  by  any  affirmative  enactment,  or 
by  mere  non-action,  can  Congress  prevent  the  Constitution 
from  being  the  supreme  law  for  any  peoples  subject  to  the  juris- 
diction of  the  United  States. 

The  power  conferred  upon  Congress  to  make  needful  rules 
and  regulations  respecting  the  Territories  of  the  United  States 
does  not  authorize  Congress  to  make  any  rule  or  regulation 
inconsistent  with  the  Constitution  or  violative  of  any  right 
secured  by  that  instrument. 

The  proposition  that  a  people  subject  to  the  full  authority 
of  the  United  States  for  purposes  of  government,  may,  under 
any  circumstances,  or  for  any  period  of  time,  long  or  short,  be 
governed,  as  Congress  pleases  to  ordain,  without  regard  to  the 
Constitution,  is,  in  my  judgment,  inconsistent  with  the  whole 
theory  of  our  institutions. 

If  the  Constitution  does  not  become  the  supreme  law  in  a 
Territory  acquired  by  treaty,  and  whose  inhabitants  are  under 
the  dominion  of  the  United  States,  until  Congress,  in  some  dis- 
tinct form,  shall  have  expressed  its  will  to  that  effect,  it  would 
necessarily  follow  that,  by  positive  enactment,  or  simply  by 
non-action.  Congress,  under  the  theory  of  "  incorporation," 
and  although  a  mere  creature  of  the  Constitution,  could  forever 
withhold  from  the  inhabitants  of  such  Territory  the  benefit  of 
the  guaranties  of  life,  liberty  and  property  as  set  forth  in  the 


WILSON    V.    SHAW,    SECRETARY    OF   THE   TREASURY.  259 

Constitution.  I  cannot  assent  to  any  such  doctrine.  I  cannot 
agree  that  the  supremacy  of  the  Constitution  depends  upon  the 
will  of  Congress.  .  .  . 

Brown,  J.,  concurring. 

I  am  disposed  to  concur  in  the  conclusion  of  the  court  upon 
the  ground  that,  by  the  treaty  of  cession  with  Russia,  it  was 
provided  that  "  the  inhabitants  of  the  ceded  territory  shall  be 
admitted  to  enjoy  all  the  rights,  advantages  and  immunities 
of  citizens  of  the  United  States;  and  shall  be  maintained  and 
protected  in  the  free  enjoyment  of  their  liberty,  property  and 
religion."  I  am  inclined  to  think,  though  with  some  doubt, 
that  those  words  include  a  right  to  a  trial  by  a  jury,  as  under^ 
stood  among  us  from  the  adoption  of  the  Constitution. 


WILSON  i'.   SHAW,  Secretary  of  the  Treasury. 

Supreme  Court  of  the  United  States.     1907. 

[204  United  States,  24.]  i 

Appeal  from  the  Court  of  Appeals  of  the  District  of  Columbia. 

Suit  was  brought  in  the  Supreme  Court  of  the  District  of  Co- 
lumbia by  a  citizen  of  Illinois,  subject  to  taxation  by  the  United 
States,  to  restrain  the  Secretary  of  the  Treasury  from  borrowing 
or  paying  out  money  for  the  purpose  of  acquiring  or  constructing 
or  operating  the  Panama  Canal.  The  bill  was  dismissed  on 
demurrer.  The  Court  of  Appeals  affirmed  the  decree.  There- 
upon this  appeal  was  taken. 

Warren  B.  Wilson,  pro  se ;  and  Russell,  Assistant  Attorney 
General,  and  others,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

If  the  bill  was  only  to  restrain  the  Secretary  of  the  Treasury 
from  pa}ing  the  specific  sums  named  therein,  to  wit,  $40,000,000 
to  the  Panama  Canal  Company,  and  $10,000,000  to  the  Republic 
of  Panama,  it  would  be  sufficient  to  note  the  fact,  of  which  we 
may  take  judicial  notice,  that  those  payments  have  been  made 
and  that  whether  they  were  rightfully  made  or  not  is,  so  far  as 
^  The  statement  has  not  been  reprinted.  —  Ed, 


260  DISTRICT   OF    COLUMBIA,    ETC. 

this  suit  is  concerned,  a  moot  question.  Cheong  Ah  Moy  v. 
United  States,  113  U.  S.  216;  Mills  v.  Green,  159  U.  S.  651; 
American  Book  Company  v.  Kansas,  193  U.  S.  49;  Jones  v. 
Montague,  194  U.  S.  147. 

But  the  bill  goes  further  and  seeks  to  restrain  the  Secretary 
from  paying  out  money  for  the  construction  of  the  canal,  from 
borrowing  money  for  that  purpose  and  issuing  bonds  of  the 
United  States  therefor.  In  other  words,  the  plaintiff  invokes 
the  aid  of  the  courts  to  stop  the  Government  of  the  United  States 
from  carrying  into  execution  its  declared  purpose  of  constructing 
the  Panama  Canal.  .  .  .  Panama  has  seceded  from  the  Re- 
public of  Colombia  and  established  a  new  republic  which  has 
been  recognized  by  other  nations.  This  new  republic  has  by 
treaty  granted  to  the  United  States  rights,  territorial  and  other- 
wise. Acts  of  Congress  have  been  passed  providing  for  the 
construction  of  a  canal,  and  in  many  ways  the  executive  and 
legislative  departments  of  the  Government  have  committed  the 
United  States  to  this  work,  and  it  is  now  progressing.  For  the 
courts  to  interfere  and  at  the  instance  of  a  citizen,  who  does  not 
disclose  the  amount  of  his  interest,  stay  the  work  of  construction 
by  stopping  the  payment  of  money  from  the  Treasury  of  the 
United  States  therefor,  would  be  an  exercise  of  judicial  power 
which,  to  say  the  least,  is  novel  and  extraordinary. 

Many  objections  may  be  raised  to  the  bill.  Among  them 
are  these:  Does  plaintiff  show  sufficient  pecuniary  interest  in 
the  subject  matter  ?  Is  not  the  suit  really  one  against  the 
Government,  which  has  not  consented  to  be  sued  ?  Is  it  any 
more  than  an  appeal  to  the  courts  for  the  exercise  of  govern- 
mental powers  which  belong  exclusively  to  Congress  ?  We  do 
not  stop  to  consider  these  or  kindred  objections;  yet,  passing 
them  in  silence  must  not  be  taken  as  even  an  implied  ruling 
against  their  sufficiency.  We  prefer  to  rest  our  decision  on 
the  general  scope  of  the  bill. 

Clearly  there  is  no  merit  in  plaintiff's  contentions.  That, 
generally  speaking,  a  citizen  may  be  protected  against  wrongful 
acts  of  the  Government  affecting  him  or  his  property  may  be 
conceded.  That  his  remedy  is  by  injunction  does  not  follow. 
A  suit  for  an  injunction  is  an  equitable  proceeding,  and  the 
interests  of  the  defendant  are  to  be  considered  as  well  as  those 
of  the  plaintiff.  Ordinarily  it  will  not  be  granted  when  there  is 
adequate  protection  at  law.      In  the  case  at  bar  it  is  clear  not 


WILSON   I'.    SHAW,    SECRETARY    OF   THE    TREASURY.  261 

only  that  plaintiff  is  not  entitled  to  an  injunction,  but  also  that 
he  presents  no  ground  for  any  relief. 

He  contends  that  whatever  title  the  Government  has  was 
not  acquired  as  provided  in  the  act  of  June  28,  1902,  by  treaty 
with  the  Republic  of  Colombia.  A  short  but  sufficient  answer 
is  that  subsequent  ratification  is  equivalent  to  original  authority. 
The  title  to  what  may  be  called  the  Isthmian  or  Canal  Zone, 
which  at  the  date  of  the  act  was  in  the  Repubhc  of  Colombia, 
passed  by  an  act  of  secession  to  the  newly  formed  Republic  of 
Panama.  The  latter  was  recognized  as  a  nation  by  the  Presi- 
dent. A  treaty  with  it,  ceding  the  Canal  Zone,  was  duly  ratified. 
33  Stat.  2234.  Congress  has  passed  several  acts  based  upon  the 
title  of  the  United  States,  among  them  one  to  provide  a  tempo- 
rary government,  33  Stat.  429;  another  fixing  the  status  of  mer- 
chandise coming  into  the  United  States  from  the  Canal  Zone, 
33  Stat.  843;  another,  prescribing  the  type  of  canal,  34  Stat.  611. 
These  show  a  full  ratification  by  Congress  of  what  has  been  done 
by  the  Executive.  Their  concurrent  action  is  conclusive  upon 
the  courts.  We  have  no  supervising  control  over  the  pohtical 
branch  of  the  Government  in  its  action  within  the  limits  of  the 
Constitution.  Jones  v.  United  States,  137  U.  S.  202,  and  cases 
cited  in  the  opinion;  In  re  Cooper,  143  U.  S.  472,  499,  503.  .  .  . 

Another  contention,  in  support  of  which  plaintiff  has  pre- 
sented a  voluminous  argument,  is  that  the  United  States  has 
no  power  to  engage  in  the  work  of  digging  this  canal.  His  first 
proposition  is  that  the  Canal  Zone  is  no  part  of  the  territory  of 
the  United  States,  and  that,  therefore,  the  Government  is  power- 
less to  do  anything  of  the  kind  therein.  Article  2  of  the  treaty, 
heretofore  referred  to,  "  grants  to  the  United  States  in  perpetuity 
the  use,  occupation  and  control  of  a  zone  of  land  and  land  under 
water  for  the  construction,  maintenance,  operation,  sanitation, 
and  protection  of  said  canal."  By  article  3,  Panama  "  grants 
to  the  United  States  all  the  rights,  power  and  authority  within 
the  zone  mentioned  and  described  in  article  2  of  this  agreement, 
.  .  .  which  the  United  States  would  possess  and  exercise  if  it 
were  the  sovereign  of  the  territory  within  which  said  lands  and 
waters  are  located,  to  the  entire  exclusion  of  the  exercise  by  the 
Republic  of  Panama  of  any  such  sovereign  rights,  power  or 
authority." 

Other  provisions  of  the  treaty  add  to  the  grants  named  in 
these  two  articles  further  guaranties  of  exclusive  rights  of  the 
United  States  in  the  construction  and  maintenance  of  this  canal. 


262  DISTRICT   OF    COLUMBIA,    ETC. 

It  is  hypercritical  to  contend  that  the  title  of  the  United  States 
is  imperfect,  and  that  the  territory  described  does  not  belong 
to  this  Nation,  because  of  the  omission  of  some  of  the  technical 
terms  used  in  ordinary  conveyances  of  real  estate. 

Further,  it  is  said  that  the  boundaries  of  the  zone  are  not 
described  in  the  treaty;  but  the  description  is  sufficient  for 
identification,  and  it  has  been  practically  identified  by  the  con- 
current action  of  the  two  nations  alone  interested  in  the  mat- 
ter. .  .  . 

Again,  plaintiff  contends  that  the  Government  has  no  power 
to  engage  anyw^here  in  the  work  of  constructing  a  railroad  or 
canal.  The  decisions  of  this  court  are  adverse  to  this  conten- 
tion.^ .  .  . 

Authorities  recognize  the  power  of  Congress  to  construct 
interstate  highways.  A  fortiori,  Congress  would  have  like 
power  within  the  Territories  and  outside  of  state  lines,  for  there 
the  legislative  power  of  Congress  is  limited  only  by  the  provisions 
of  the  Constitution,  and  cannot  conflict  with  the  reserved  power 
of  the  States.  .  .  .  Affirmed. 


KAWANANAKOA  v.   POLYBLANK. 

Supreme  Court  of  the  United  States.     1907. 
[205  United  States,  349.] 

Appeal  from  the  Supreme  Court  of  the  Territory  of  Hawaii. 

The  facts  are  stated  in  the  opinion. 

Sidney  M.  Ballon,  for  appellant;  and  Aldis  B.  Browne  and  others, 
contra. 

Holmes,  J.,  dehvered  the  opinion  of  the  court. 

This  is  an  appeal  from  a  decree  affirming  a  decree  of  foreclos- 
ure and  sale  under  a  mortgage  executed  by  the  appellants  to 
the  appellee.  Sister  Albertina.  17  Hawaii,  82.  The  defendants 
(appellants)  pleaded  to  the  jurisdiction  that  after  the  execution 
of  the  mortgage  a  part  of  the  mortgaged  land  had  been  conveyed 

1  Here  were  cited  California  v.  Pacific  R.  Co.,  127  U.  S.  1,  39  (1888), 
Luxton  V.  North  River  Bridge  Co.,  153  U.  S.  525,  529  (1894),  and  Monon- 
gahela  Navigation  Co.  v.  United  States,  148  U.  S.  312  (1893).  —  Ed. 


KAWANANAKOA  V.    POLYBLANK.  263 

by  them  to  one  Damon,  and  by  Damon  to  the  Territory  of 
Hawaii,  and  was  now  part  of  a  public  street.  The  bill  origi- 
nally made  the  Territory  a  party,  but  the  Territory  demurred 
and  the  plaintiffs  dismissed  their  bill  as  to  it  before  the  above 
plea  was  argued.  Then  the  plea  was  overruled,  and  after  answer 
and  hearing  the  decree  of  foreclosure  was  made,  the  appellants 
having  saved  their  rights.  The  decree  excepted  from  the  sale 
the  land  conveyed  to  the  Territory  and  directed  a  judgment  for 
the  sum  remaining  due  in  case  the  proceeds  of  the  sale  were 
insufficient  to  pay  the  debt.     Eq.  Rule  92. 

The  appellants  contend  that  the  owners  of  the  equity  of  re- 
demption in  all  parts  of  the  mortgage  land  must  be  joined,  and 
that  no  deficiency  judgment  should  be  entered  until  all  the 
mortgaged  premises  have  been  sold.  In  aid  of  their  contention 
they  argue  that  the  Territory  of  Hawaii  is  liable  to  suit  like  a 
municipal  corporation,  irrespective  of  the  permission  given  by 
its  statutes,  which  does  not  extend  to  this  case.  They  Hken 
the  Territory  to  the  District  of  Columbia,  Metropolitan  R.  R. 
Co.  V.  District  of  Columbia,  132  U.  S.  1,  and  point  out  that  it 
has  been  a  party  to  suits  that  have  been  before  this  court.  Da- 
mon V.  Hawaii,  194  U.  S.  154;  Carter  v.  Hawaii,  200  U.  S.  255. 

The  Territory,  of  course,  could  waive  its  exemption,  Smith 
V.  Reeves,  178  U.  S.  436,  and  it  took  no  objection  to  the  pro- 
ceedings in  the  cases  cited  if  it  could  have  done  so.  See  Act 
of  April  30,  1900,  c.  339,  §  96;  31  Stat.  141,  160.  But  in  the 
case  at  bar  it  did  object,  and  the  question  raised  is  whether 
the  plaintiffs  were  bound  to  yield.  Some  doubts  have  been 
expressed  as  to  the  source  of  the  immunity  of  a  sovereign  power 
from  suit  without  its  o^vti  permission,  but  the  answer  has  been 
public  property  since  before  the  days  of  Hobbcs.  (Leviathan, 
c.  26,  2.)  A  sovereign  is  exempt  from  suit,  not  because  of  any 
formal  conception  or  obsolete  theory,  but  on  the  logical  and 
practical  ground  that  there  can  be  no  legal  right  as  against  the 
authority  that  makes  the  law  on  which  the  right  depends.  "  Car 
on  pent  bieti  recevoir  loy  d'autruy,  mais  il  est  impossible  par  nature 
de  se  donner  loy."  Bodin,  Republique,  1,  c.  8.  Ed.  1629,  p.  132. 
Sir  John  Eliot,  De  Jure  Maiestatis,  c.  3.  Nemo  suo  statuto  ligatur 
necessitative.  Baldus,  De  Leg.  et  Const.,  Digna  Vox  (2d  ed., 
1496,  fol.  51b.  Ed.  1539,  fol.  61). 

As  the  ground  is  thus  logical  and  practical,  the  doctrine  is 
not  confined  to  powers  that  are  sovereign  in  the  full  sense  of 
juridical  theory,  but  naturally  is  extended  to  those  that  in  actual 


264  DISTRICT   OF   COLUMBIA,    ETC. 

administration  originate  and  change  at  their  will  the  law  of 
contract  and  propert}',  from  which  persons  within  the  jurisdic- 
tion, derive  their  rights.  A  suit  presupposes  that  the  defendants 
are  subject  to  the  law  invoked.  Of  course  it  cannot  be  main- 
tained unless  they  are  so.  But  that  is  not  the  case  with  a  terri- 
tory of  the  United  States,  because  the  Territory  itself  is  the 
fountain  from  which  rights  ordinarily  flow.  It  is  true  that 
Congress  might  intervene,  just  as  in  the  case  of  a  State  the  Con- 
stitution does,  and  the  power  that  can  alter  the  Constitution 
might.  But  the  rights  that  exist  are  not  created  by  Congress 
or  the  Constitution,  except  to  the  extent  of  certain  limitations 
of  power.  The  District  of  Columbia  is  different,  because  there 
the  body  of  private  rights  is  created  and  controlled  by  Congress 
and  not  by  a  legislature  of  the  District.  But  for  the  Territory  of 
Hawaii  it  is  enough  to  refer  to  the  organic  act.  Act  of  April  30, 
1900,  c.  339,  §§  6,  55;  31  Stat.  141,  142,  150;  Coffield  v.  Hawaii, 
13  Hawaii,  478.  See  further  Territory  of  Wisconsin  v.  Doty, 
1  Pinney,  396,  405;  Langford  v.  King,  1  Montana,  33;  Fisk  v. 
Cuthbert,  2  Montana,  593,  598. 

However  it  might  be  in  a  different  case,  when  the  inability 
to  join  all  parties  and  to  sell  all  the  land  is  due  to  a  conveyance 
by  the  mortgagor  directly  or  indirectly  to  the  Territory  the 
court  is  not  thereby  deprived  of  ability  to  proceed. 

Decree  affi,rmed. 

Harlan,  J.,  concurs  in  the  result. 


SANTIAGO    V.    NOGUERAS. 


265 


SANTIAGO  V.  NOGUERAS. 

Supreme  Court  of  the  United  States.     1909. 

[214  United  States,  260.] 

Error  to  the  District  Court  of  the  United  States  for  Porto 
Rico. 

The  facts  are  stated  in  the  opinion. 

Francis  H.  Dexter,  for  plaintiffs  in  error;  and  Charles  Hartzell 
and  Manuel  Rodriguez-Serra,  contra. 

Moody,  J.,  dehvered  the  opinion  of  the  court. 

The  plaintiffs  in  error  brought  in  the  District  Court  of  the 
United  States  for  Porto  Rico  an  action  for  the  recovery  of  cer- 
tain parcels  of  land  held  by  the  defendants  in  error.  There  was 
judgment  for  the  defendants  in  the  court  below,  and  the  case 
is  here  upon  WTit  of  error.  .  .  . 

One  of  the  plaintiffs  once  owned  the  lands  in  dispute,  but 
they  were  sold  upon  an  execution  issued  upon  a  judgment 
rendered  against  him  by  the  United  States  Provisional  Court. 
The  defendants,  by  mesne  conveyances,  hold  the  title  con- 
veyed by  the  execution  sale.  The  plaintiffs  attack  that  title 
solely  upon  the  grounds  that  the  United  States  Provisional 
Court  had  no  lawful  existence,  and  if  lawfully  constituted  was 
entirely  without  jurisdiction  to  render  the  judgment  which  it 
did,  and  that  for  the  one  reason  or  the  other  the  judgment  is  a 
nullity  everywhere. 

The  ratifications  of  the  treaty  of  peace  by  which  Porto  Rico 
was  ceded  to  the  United  States  were  exchanged  April  11,  1899. 
30  Stat.  1754.  The  act  of  Congress  establishing  a  civil  govern- 
ment in  Porto  Rico,  passed  April  12,  1900,  31  Stat.  77,  c.  191, 
took  effect  on  May  1  of  that  year.  Between  these  two  dates, 
on  June  27,  1899,  the  United  States  Provisional  Court,  here  in 
question,  was  estabhshed  by  miUtary  authority,  with  the  ap- 
proval of  the  President,   by  General  Order,  No.  88,  series  of 

1899.  ... 

At  the  tine  this  order  was  issued  peace  prevailed  in  Porto 
Rico  and  the  courts  estabhshed  under  Spanish  sovereignty  were 

open. 

The  plaintiffs  contend  that  the  military  power,  acting  by  the 
authority  of  the  President  as  Commander-in-Chief,  does  not 
warrant  the  creation  of  the  United  States  Provisional  Court. 


266  DISTRICT   OF    COLUMBIA,    ETC. 

By  the  ratifications  of  the  treaty  of  peace,  Porto  Rico  ceased 
to  be  subject  to  the  crown  of  Spain  and  became  subject  to  the 
legislative  power  of  Congress.  But  the  civil  government  of  the 
United  States  cannot  extend  immediately  and  of  its  own  force 
over  conquered  and  ceded  territory.  Theoretically,  Congress 
might  prepare  and  enact  a  scheme  of  civil  government  to  take 
effect  immediately  upon  the  cession,  but,  practically,  there 
always  have  been  delays  and  always  will  be.  Time  is  required 
for  a  study  of  the  situation  and  for  the  maturing  and  enacting 
of  an  adequate  scheme  of  civil  government.  In  the  meantime, 
pending  the  action  of  Congress,  there  is  no  civil  power  under 
our  system  of  government,  not  even  tliat  of  the  President  as 
civil  executive,  which  can  take  the  place  of  the  government 
which  has  ceased  to  exist  by  the  cession.  Is  it  possil)le  that, 
under  such  circumstances,  there  must  be  an  interregnum  ?  We 
think  clearly  not.  The  authority  to  govern  such  ceded  terri- 
tory is  found  in  the  laws  applicable  to  conquest  and  cession. 
That  authority  is  the  military  power,  under  the  control  of  the 
President  as  Commander-in-Chief.^  .  .  . 

But  whatever  may  be  the  limits  of  the  military  power,  it  cer- 
tainly must  include  the  authority  to  establish  courts  of  justice, 
which  are  so  essential  a  part  of  government.  .  .  .  With  this 
thought  in  mind,  the  mihtary  power  not  only  established  this 
particular  court  in  Porto  Rico,  but  as  well  a  system  of  courts, 
which  took  the  place  of  the  courts  under  Spanish  sovereignty, 
and  were  continued  by  the  organic  act.  The  same  course  was 
pursued  in  the  Philippine  Islands. 

By  §  34  of  the  organic  act  (31  Stat.  77),  a  District  Court  of 
the  United  States  for  Porto  Rico  was  created,  and  it  was  pro- 
vided that  the  same  "  shall  be  the  successor  to  the  United  States 
provisional  court  established  by  General  Orders  numbered  Eighty- 
eight,  promulgated  by  Brigadier  General  Davis,  United  States 
Volunteers,  and  shall  take  possession  of  all  records  of  that  Court, 
and  take  jurisdiction  of  all  cases  and  proceedings  pending  therein, 
and  said  United  States  provisional  court  is  hereby  discontinued," 

The  record  shows  that  in  conformity  with  this  provision  the 
newly-created  District  Court  of  the  United  States  for  Porto 
Rico  issued  an   execution   upon   this  judgment  of  the   United 

1  Here  were  cited  Cross  v.  Harrison,  16  How.  164  (1853),  Leitensdorfer  v. 
Webb,  20  How.  176  (1857);  Downes  v.  Bidwell,  ante,  p.  229  (1901);  Dooley 
V.  United  States,  182  U.  S.  222  (1901),  and  Lincoln  v.  United  States,  197 
U.S.  419  (1905). —Ed. 


SANTIAGO    V.    NOGUERAS.  267 

States  Provisional  Court,  and  the  property  was  sold  upon  that 
execution.  .  .  . 

We  are  of  the  opinion  that  the  judgment  of  the  United  States 
Provisional  Court  was  not  a  nullity  and  that  the  sale  on  execu- 
tion, under  which  the  defendants  claim,  conveyed  to  them  a 
good  title.  As  the  court  below  took  the  same  view,  its  judg- 
ment is 

Affirmed. 


CASES  ON   CONSTITUTIONAL  LAW 


BOOK   II. 


SOME  PROVISIONS  PROTECTING  THE  INDIVIDUAL 
AGAINST  THE  STATE  OR  THE  NATION. 


CHAPTER  I. 

THE  CONTRACT  CLAUSE. 

FLETCHER   v.   PECK: 

Supreme  Court  of  the  United  States.     1810. 

[6  Cranch,  87.]  ^ 
Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Massachusetts. 

Action  was  brought  by  Fletcher  against  Peck  for  breach  of  cove- 
nants in  a  conveyance.  Tlie  land  was  part  of  a  tract  which  had 
belonged  to  Georgia  and  which  had  been  conveyed  by  the  Governor 
in  a  pktent  to  Gunn  and  others,  in  accordance  with  an  act  of  the 
legislature  passed  in  1795.  By  mesne  conveyances  the  land  in 
question  passed  to  Peck.  In  1803  Peck_conveyed  it  to  Fletcli^r 
by  a  deed  which  covenanted,  among  other  things,  thai_the_title, 
c5i^^eygcrb7Ge^rLna"^nd  vested_nU:e(-K  h^a  '■>gen  m  no  way  con- 
.t^^TTg^^g^^^filflllv^  virtue  of  any  subsequentac^of 

any  subsequent  legislature. 

Thrdeclaratioirt'OnlUlned  four  counts,  averring  four  breaches, 
the  third  count  being  that,  in  consequence  of  the  fraudulent  prac- 
tices of  the  original  grantees  in  procuring  members  of  legislature  to 
vote  for  the  act  of  179.5,  a  sul^sequent  legislature  m  1796  passed  an 
act  rescinding  and  annulling  the  law  under  which  the  conveyance 
to  the  original  grantees  was  made  and  asserting  the  title  ot  the 
state  to  the  lands,  wherefore  the  title  of  Peck  was  constitutionally 
and  legally  impaired:  and  rendered  null  and  void. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 

269 


270  THE  CONTRACT  CLAUSE. 

To  each  count  there  was  one  plea.  The  plea  to  the  third  count 
was  purcliase  by  the  mesne  grantees  and  l)y  Peck  without  notice  of 
the  corruption  —  which  was  denied  to  have  existed. 

There  were  demurrers  to  this  plea  and  to  the  pleas  to  the  first  and 
second  counts;  and  on  the  plea  to  the  fourth  count  issue  was  joined 
and  the  jury  found  a  special  verdict. 

The  pleas  were  sustained  and  judgment  was  rendered  for  the 
defendant  by  the  Circuit  Court. 

The  plaintiff  sued  out  his  writ  of  error,  which  was  twice  argued. 

Martin,  for  plaintiff  in  error;  and  J.  Q.  Adatyis,  R.  G.  Harper,  and 
Story,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court  as  follows:  — 

The  pleadings  being  now  amended,  this  cause  comes  on  again 
to  be  heard  on  sundry  demurrers,  and  on  a  special  verdict. 

The  suit  was  instituted  on  several  covenants  contained  in  a  deed 
made  by  John  Peck,  the  defendant  in  error,  conveying  to  Robert 
Fletcher,  the  plaintiff  in  error,  certain  lands  which  were  part  of  a 
large  purchase  made  by  James  Gunn  and  others,  in  the  year  1795, 
from  the  State  of  Georgia,  the  contract  for  which  was  made  in  the 
form  of  a  bill  passed  by  the  legislature  of  that  State.  .  .  . 

The  lands  in  controversy  vested  absolutely  in  James  Gunn  and 
others,  the  original  grantees,  by  the  conveyance  of  the  Governor, 
made  in  pursuance  of  an  act  of  as.seml)ly  to  which  the  legislature 
was  fully  competent.  Being  thus  in  full  possession  of  the  legal 
estate,  they,  for  a  valuable  consideration,  conveyed  portions  of  the 
land  to  those  who  were  willing  to  purchase.  If  the  original  trans- 
action was  infected  with  fraud,  these  purchasers  did  not  participate 
in  it,  and  had  no  notice  of  it.  They  were  innocent.  Yet  the  legis- 
lature of  Georgia  has  involved  them  in  the  fate  of  the  first  parties  to 
the  transaction,  and,  if  the  act  be  valid,  has  annihilated  their  rights 
also.' 

The  legislature  of  Georgia  was  a  party  to  this  transaction;  and 
for  a  party  to  pronounce  its  ovra  deed  invalid,  whatever  cause  may 
be  assigned  for  its  invalidity,  must  be  considered  as  a  mere  act  of 
power  which  must  find  its  vindication  in  a  train  of  reasoning  not 
often  heard  in  courts  of  justice.  .  .  . 

If  the  legislature  of  Georgia  was  not  bound  to  submit  its  preten- 
sions to  those  tribunals  which  are  established  for  the  security  of 
property,  and  to  decide  on  human  rights,  if  it  might  claim  to  itself 
the  power  of  judging  in  its  ovra  case,  yet  there  are  certain  great 
principles  of  justice,  whose  authority  is  universally  acknowledged, 
that  ought  not  to  be  entirely  disregarded. 


FLETCHER    V.    PECK.  271 

If  the  legislature  be  its  own  judge  in  its  o^\^l  case,  it  would  seem 
equitable  that  its  decision  should  be  regulated  by  those  rules  which 
would  have  regulated  the  decision  of  a  j  udicial  tribunal.  The  ques- 
tion was,  in  its  nature,  a  question  of  title,  and  the  tribunal  which 
decided  it  was  either  acting  in  the  character  of  a  court  of  justice, 
and  performing  a  duty  usually  assigned  to  a  court,  or  it  was  exert- 
ing a  mere  act  of  power  in  which  it  was  controlled  only  by  its 
own  will. 

If^^uit  be  brought  to  set  aside  a  conveyance  obtained  by  fraud, 
and  the  fraud  be^clearly  proved,  the  conveyancolyTTTlje  set  asicfe; 
as  betwecnthe  parties:  ijut  the  rights  of  third  jiersons,  who  are 
purcliasers^-ithout  notice,  for  a  valuable  consideration,  cannot  be 


If  the  legislature  felt  itself  absolved  from  those  rules  of  property 
which  are  common  to  all  the  citizens  of  the  United  States,  and 
from  those  principles  of  equity  which  are  acknowledged  in  all  our 
courts,  its  act  is  to  be  supported  by  its  power  alone,  and  the  same 
power  may  divest  any  other  individual  of  his  lands,  if  it  shall  be  the 
will  of  the  legislature  so  to  exert  it.  .  .  . 

Is  the  power  of  the  legislature  competent  to  the  annihilation  of 
such  title,  and  to  a  resumption  of  the  property  thus  held  ? 

The  principle  asserted  is,  that  one  legislature  is  competent  to 
repeal  any  act  which  a  former  legislature  was  competent  to  pass; 
and  that  one  legislature  cannot  abridge  the  powers  of  a  succeeding 
legislature. 

The  correctness  of  this  principle,  so  far  as  respects  general  legis- 
lation, can  never  be  controverted.  But,  if  an  act  be  done  under  a 
law,  a  succeeding  legislature  cannot  undo  it.  The  past  cannot  be 
recalled  by  the  most  absolute  power.  Conveyances  have  been 
made,  those  conveyances  have  vested  legal  estates,  and,  if  those 
estates  may  be  seized  by  the  sovereign  authority,  still  that  they 
originally  vested  is  a  fact,  and  cannot  cease  to  be  a  fact. 

When,  then,  a  law  is  in  its  nature  a  contract,  when  absolute  rights 
have  vested  under  that  contract,  a  repeal  of  the  law  cannot  divest 
those  rights;  and  the  act  of  annulling  them,  if  legitimate,  is  ren- 
dered so  by  a  power  applicable  to  the  case  of  every  individual  in  the 
community. 

It  may  well  be  doubted  whether  the  nature  of  society  and  of 
government  does  not  prescribe  some  limits  to  the  legislative  power; 
and,  if  any  be  prescribed,  where  are  they  to  be  found,  if  the  prop- 
erty of  an  individual,  fairly  and  honestly  acquired,  may  be  seized 
without  compensation. 


272  THE  CONTRACT  CLAUSE. 

To  the  legislature  all  legislative  power  is  granted;  but  the  ques- 
tion, whether  the  act  of  transferring  the  property  of  an  individual 
to  the  public,  be  in  the  nature  of  the  legislative  power,  is  well 
worthy  of  serious  reflection.  .  .  . 

The  validity  of  this  rescinding  act,  then,  migiit  well  be  doubted, 
were  Georgia  a  single  sovereign  power.  But  Georgia  cannot  be 
viewed  as  a  single,  unconnected,  sovereign  power,  on  whose  legis- 
lature no  other  restrictions  are  imposed  than  may  be  found  in  its 
own  constitution.  She  is  a  part  of  a  large  empire;  she  is  a  member 
of  the  American  union;  and  that  union  has  a  constitution  the 
supremacy  of  which  all  acknowledge,  and  which  imposes  limits 
to  the  legislatures  of  the  several  states,  which  none  claim  a  right 
to  pass.  The  Constitution  of  the  United  States  declares  that  no 
state  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts. 

Does  the  case  now  under  consideration  come  within  this  prohibi- 
tory section  of  the  Constitution  ? 

In  considering  this  very  interesting  question,  we  immediately  ask 
ourselves  what  is  a  contract  ?     Is  a  grant  a  contract  ? 

A  contract  is  a  compact  between  two  or  more  parties,  and  is 
either  executory  or  executed.  An  executory  contract  is  one  in 
which  a  party  binds  himself  to  do,  or  not  to  do,  a  particular  thing; 
such  was  the  law  under  which  the  conveyance  was  made  by  the 
Governor.  A  contract  executed  is  one  in  which  the  object  of  con- 
tract is  performed;  and  this,  says  Blackstone,  differs  in  nothing 
from  a  grant.  The  contract  between  Georgia  and  the  purchasers 
was  executed  by  the  grant.  A  contract  executed,  as  welLiia.one 
which  is  executory,  contains  nbli^Tioris.ninrimp;  on  the  ivu-tios — -A 
graiit,  in  its  own  nature,  amounisto  an  cxtingui?--hnientjjfjhe_right 
ofthe  grantor,  and  nnplies  a  contra<?t  not  to  reassert  that  right.  A 
party  is,  therefore,  always  estopped  by  nis  own  gTintfT 

Since,'  then,  in  fact,  a  grant  is  a  contract  executed,  the  obligation 
of  which  still  contmues,  and  since  the  Constitution  uses  the  general 
term  contract,  without  distinguishing  between  those  which  are 
executory  and  those  which  are  executed,  it  must  be  construed  to 
comprehend  the  latter  as  well  as  the  former.  A  law  annulling  con- 
veyances between  individuals,  and  declaring  that  the  grantors 
should  stand  seised  of  their  former  estates,  notwithstanding  those 
grants,  would  be  as  repugnant  to  the  Constitution  as  a  lawdischarg- 
ing  the  vendors  of  property  from  the  obligation  of  executing  their 
contracts  by  conveyances.     It  would  be  strange  if  a  contract  to 


FLETCHER   V.    PECK'.  273 

convey  was  secured  by  the  Constitution,  while  an  absolute  convej'- 
ance  remained  unprotected. 

If,  under  a  fair  construction  of  the  Constitution,  grants  are  com- 
prehended under  the  term  contracts,  is  a  grant  from  the  state  ex- 
cluded from  the  operation  of  the  provision  ?  Is  the  clause  to  be 
considered  as  inhibiting  the  state  from  impairing  the  obligation  of 
contracts  between  two  individuals,  but  as  excluding  from  that  in- 
hibition contracts  made  with  itself  ? 

The  words  themselves  contain  no  such  distinction.  They  are 
general,  and  are  apphcable  to  contracts  of  every  description.  If 
contracts  made  with  the  state  are  to  be  exempted  from  their  opera- 
tion, the  exception  must  arise  from  the  character  of  the  contracting 
party,  not  from  the  \\'ords  which  are  employed. 

Whatever  respect  might  have  been  felt  for  the  state  sovereign- 
ties, it  is  not  to  be  disguised  that  the  framcrs  of  the  Constitution 
viewed,  with  some  apprehension,  the  violent  acts  which  might 
grow  out  of  the  feelings  of  the  moment;  and  that  the  people  of  the 
United  States,  in  adopting  that  instrument,  have  manifested  a 
determination  to  shield  themselves  and  their  property  from  the 
effects  of  those  sudden  and  strong  passions  to  which  men  are  ex- 
posed. The  restrictions  on  the  legislative  power  of  the  states  are 
obviously  founded  in  this  sentiment;  and  the  Constitution  of  the 
United  States  contains  what  may  be  deemed  a  bill  of  rights  for  the 
people  of  each  state. 

No  state  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts. 

A  bill  of  attainder  may  affect  the  life  of  an  individual,  or  may 
confiscate  his  property,  or  may  do  both. 

In  this  form  the  power  of  the  legislature  over  the  lives  and  for- 
tunes of  individuals  is  expressly  restrained.  What  motive,  then, 
for  implying,  in  words  which  import  a  general  prohibition  to  impair 
the  obligation  of  contracts,  an  exception  in  favor  of  the  right  to 
impair  the  obligation  of  those  contracts  into  which  the  state  may 
enter  ?  .  .  . 

The  argument  in  favor  of  presuming  an  intention  to  except  a 
case,  not  excepted  by  the  words  of  the  Constitution,  is  susceptible 
of  some  illustration  from  a  principle  originally  ingrafted  in  that 
instrument,  though  no  longer  a  part  of  it.  The  Constitution,  as 
passed,  gave  the  courts  of  the  United  States  jurisdiction  in  suits 
brought  against  individual  states.  A  state,  then,  which  violated 
its  OMTi  contract  was  suable  in  the  courts  of  the  United  States  for 
that  violation.     Would  it  have  been  a  defense  in  such  a  suit  to  say 


274 


THE    CONTRACT    CLAUSE. 


that  the  state  had  passed  a  law  absolving  itself  from  the  contract  ? 
It  is  scarcely  to  be  conceived  that  such  a  defense  C()uldl)e  set  UD. 
And  yet,  if  a  state  is  neitKer  restrallKHl  \)y  tiie  general  principles  of 
our  political  institutions,  nor  by  the  words  of  the  Constitution,  from 
impairing  the  obligation  of  its  own  contracts,  such  a  defense  would 
be  a  valid  one.  This  feature  is  no  longer  found  in  the  Constitution ; 
but  it  aids  in  the  construction  of  those  clauses  with  which  it  was 
originally  associated. 

It  is,  then,  the  unanimous  opinion  of  the  cojirt,  t^M^t,  in  tlm-  case, 
the  esTatF+mving  passed  mto_U]e_haTids  of  a  purchaser  for  a  valu- 
-;d5Te>eoftyid('ialimi,  vrTnToutnotice,  tlie^^trrtt^-efjlgorgia  wtis" re- 
strained, cither  by  generarprinciples^wiiich  arc  cominoii  to  our  free 
instTtutions,  oTtrnhc  TJarticular  provisions  of  the  Coaj*'^"^'"Ti  of 
the  Unitl'd  ["jUUes,  fniin  iTTLssnig  a  laAv  wTif'reby  the  estate  of  the 
plaintiff  in  the  premises  so  purchaseclcould  be  constitutionally  aiTTJ 
legally  impaired  and_rendere(l  null  and  void. 

fiToverrulmg  the  demurrer  to  the  third  plea,  therefore,  there  is 
no  error.  .  .  .  Judgment  affirmed. 


Johnson,  J.  .  .  . 

I  do  not  hesitate  to  declare  that  a  state  does  not  possess  the 
power  of  revoking  its  own  grants.  But  I  do  it  on  a  general  prin- 
ciple, on  the  reason  and  nature  of  things:  a  principle  which  will 
impose  laws  even  on  the  Deity. 

A  contrary  opinion  can  only  be  maintained  upon  the  ground  that 
no  existing  legislature  can  abridge  the  powers  of  those  which  will 
succeed  it.  To  a  certain  extent  this  is  certainly  correct;  but  the 
distinction  lies  betw^een  power  and  interest,  the  right  of  jurisdiction 
and  the  right  of  soil. 

The  right  of  jurisdiction  is  essentially  connected  to,  or  rather 
identified  with,  the  national  sovereignty.  To  part  with  it  is  to 
commit  a  species  of  political  suicide.  In  fact,  a  power  to  protluce 
its  own  aimihilation  is  an  absurdity  in  terms.  It  is  a  power  as 
utterly  incommunicable  to  a  political  as  to  a  natural  person.  But 
it  is  not  so  with  the  interests  or  property  of  a  nation.  Its  posses- 
sions nationally  are  in  nowise  necessary  to  its  political  existence; 
they  are  entirely  accidental,  and  may  be  parted  with  in  every  re- 
spect similarly  to  those  of  the  individuals  wiio  compose  the  com- 
munity. When  the  legislature  have  once  conveyed  their  interest 
or  property  in  any  subject  to  the  individual,  they  have  lost  all  con- 
trol over  it;  have  nothing  to  act  upon;  it  has  passed  from  them;  is 
vested  in  the  individual;    becomes  intimately  blended  with  his 


FLETCHER   V.    PECK.  275 

existence,  as  essentially  so  as  the  blood  that  circulates  through 
his  system.  .  .  . 

I  have  thrown  out  these  ideas  that  I  may  have  it  distinctly  under- 
stood that  my  opinion  on  this  point  is  not  founded  on  the  provision 
in  the  Constitution  of  the  United  States,  relative  to  laws  impairing 
the  obligation  of  contracts.  It  is  much  to  be  regretted  that  words 
of  less  equivocal  signification  had  not  been  adopted  in  that  article 
of  the  Constitution.  There  is  reason  to  believe,  from  the  letters  of 
Publius,  which  are  well  known  to  be  entitled  to  the  highest  respect, 
that  the  object  of  the  convention  was  to  afford  a  general  protection 
to  individual  rights  against  the  acts  of  the  state  legislatures. 
Whether  the  words,  "  acts  impairing  the  obligation  of  contracts," 
can  be  construed  to  have  the  same  force  as  must  have  been  given 
to  the  words  "  obligation  and  effect  of  contracts,"  is  the  difficulty  in 
my  mind. 

There  can  be  no  solid  objection  to  adopting  the  technical  defini- 
tion of  the  word  "  contract,"  given  by  Blackstone.  The  etymol- 
ogy, the  classical  signification,  and  the  civil  law  idea  of  the  word, 
\\ill  all  support  it.  But  the  difficulty  arises  on  the  word  "  obliga- 
tion," which  certainly  imports  an  existing  moral  or  physical  neces- 
sity. Now  a  grant  or  conveyance  by  no  means  necessarily  implies 
the  continuance  of  an  obligation  beyond  the  moment  of  executing 
it.  It  is  most  generally  but  tlie  consummation  of  a  contract,  is 
functus  officio  the  moment  it  is  executed,  and  continues  afterwards 
to  be  nothing  more  than  the  evidence  that  a  certain  act  was  done. 

I  enter  with  great  hesitation  upon  this  question,  because  it  in- 
volves a  subject  of  the  greatest  delicacy  and  much  difficulty.  The 
states  and  the  United  States  are  continually  legislating  on  the  sub- 
ject of  contracts,  prescribing  the  mode  of  authentication,  the  time 
within  which  suits  shall  be  prosecuted  for  them,  in  many  cases 
affecting  existing  contracts  by  the  laws  which  they  pass,  and  de- 
claring them  to  cease  or  lose  their  effect  for  want  of  compliance,  in 
the  parties,  with  such  statutory  provisions.  All  these  acts  appear 
to  be  within  the  most  correct  limits  of  legislative  pov/ers,  and  most 
beneficially  exercised,  and  certainly  could  not  have  been  intended 
to  be  affected  by  this  constitutional  provision;  yet  where  to  draw 
the  line,  or  how  to  define  or  limit  tlie  words,  "  obligation  of  con- 
tracts," A\-ill  be  found  a  subject  of  extreme  difficulty. 

To  give  it  the  general  effect  of  a  restriction  of  the  state  powers  in 
favor  of  private  rights  is  certainly  going  very  far  beyond  the  ob- 
vious and  necessary  import  of  the  words,  and  would  operate  to 
restrict  the  states  in  the  exercise  of  that  right  which  every  com- 


276  THE  CONTRACT  CLAUSE. 

munity  must  exercise,  of  possessing  itself  of  the  property  of  the 
individual,  when  necessary  for  public  uses;  a  right  which  a  mag- 
nanimous and  just  government  will  never  exercise  without  amply 
indemnifying  the  individual,  and  which  perhaps  amounts  to  noth- 
ing more  than  a  power  to  oblige  him  to  sell  and  convey,  when  the 
public  necessities  require  it.  .  .  . 


STATE   OF  NEW  JERSEY  v.   WILSON. 
Supreme  Court  of  the  United  States.     1812. 

[7  Cranch,  164.] 

This  case  was  submitted  to  this  court,  upon  a  statement  of  facts, 
without  argument. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  as  follows:— 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  court  of  last 
resort  in  the  State  of  New  Jersey,by  which  the  plaintiffs  allege  they 
are  deprived  of  a  right  secured  to  them  by  the  Constitution  of  the 
United  States. 

The  case  appears  to  be  this. 

The  remnant  of  the  tribe  of  Delaware  Indians,  previous  to  the 
20th  February,  1758,  had  claims  to  a  considerable  portion  of  lands 
in  New  Jersey,  to  extinguish  which  became  an  object  with  the  gov- 
ernment and  proprietors  under  the  conveyance  from  King  Charles 
II,  to  the  Duke  of  York.  For  this  purpose  a  convention  was  held 
in  February,  1758,  betAveen  the  Indians  and  commissioners  ap- 
pointed by  the  government  of  New  Jersey;  at  which  the  Indians 
agreed  to  specify  particularly  the  lands  Avhich  they  claimed;  release 
their  claim  to  all  others;  and  to  appoint  certain  chiefs  to  treat  with 
commissioners  on  the  part  of  the  government  for  the  final  extin- 
guishment of  their  whole  claim. 

On  the  9th  of  August,  1758,  the  Indian  deputies  met  the  commis- 
sioners and  delivered  to  them  a  proposition  reduced  to  writing  — 
the  basis  of  which  was,  that  the  government  should  purchase  a 
tract  of  land  on  which  they  might  reside  —  in  consideration  of 
which  they  would  release  their  claim  to  all  other  lands  in  New 
Jersey  south  of  the  river  Raritan. 


NEW   JERSEY   V.    WILSON.  277 

This  proposition  appears  to  have  been  assented  to  by  the  com- 
missioners; and  the  legislature  on  the  12th  of  August,  1758,  passed 
an  act  to  give  effect  to  this  agreement. 

This  act,  among  other  provisions,  authorizes  the  purchase  of 
lands  for  the  Indians,  restrains  them  from  granting  leases  or  making 
sales,  and  enacts  "  that  the  lands  to  be  purchased  for  the  Indians 
aforesaid  shall  not  hereafter  be  subject  to  any  tax,  any  law  usage 
or  custom  to  the  contrary  thereof,  in  any  wise  notwithstanding." 

In  virtue  of  this  act,  the  convention  with  the  Indians  was  exe- 
cuted. Lands  were  purchased  and  conveyed  to  trustees  for  their 
use,  and  the  Indians  released  their  claim  to  the  south  part  of  New 
Jersey. 

The  Indians  continued  in  peaceable  possession  of  the  lands  thus 
conveyed  to  them  until  some  time  in  the  year  1801,  when,  having 
become  desirous  of  migrating  from  the  State  of  New  Jersey,  and  of 
joining  their  brethren  at  Stockbridge,  in  the  State  of  New  York, 
they  applied  for  and  obtained  an  act  of  the  legislature  of  New 
Jersey,  authorizing  a  sale  of  their  land  in  that  state. 

This  act  contains  no  expression  in  any  manner  respecting  the 
privilege  of  exemption  from  taxation  which  was  annexed  to  those 
lands  by  the  act,  under  which  they  were  purchased  and  settled  on 
the  Indians. 

In  1803,  the  commissioners  under  the  last  recited  act  sold  and 
conveyed  the  lands  to  the  plaintiffs,  George  Painter  and  others. 

In  October,  1804,  the  legislature  passed  an  act  repealing  that 
section  of  the  act  of  August,  1758,  which  exempts  the  lands  therein 
mentioned  from  taxes.  The  lands  Avere  then  assessed,  and  the  taxes 
demanded.  The  plaintiffs  thinking  themselves  injured  by  this 
assessment,  brought  the  case  before  the  courts  in  the  manner  pre- 
scribed by  the  laws  of  New  Jersey,^  and  in  the  highest  court  of  the 
state,  the  validity  of  the  repealing  act  was  affirmed  and  the  land 
declared  liable  to  taxation.  The  cause  is  brought  into  this  court 
by  writ  of  error,  and  the  question  here  to  be  decided  is,  does  the  act 
of  1804  violate  the  Constitution  of  the  United  States. 

The  Constitution  of  the  United  States  declares  that  no  state  shall 
"  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts." 

1  The  report  in  2  X.  J.  L.  (1  Pennington),  300  shows  that  in  the  name  of  the 
state  the  proprietors  brought,  in  the  Supreme  Court  of  New  Jersey,  a  writ  of 
certiorari  to  quash  an  assessment  of  state  and  county  taxes  made  as  to  these 
lands  by  Wilson,  township  assessor,  and  that  in  that  court  the  assessment  was 
afiirmed.  —  Ed. 


278  THE    CONTRACT    CLAUSE. 

In  the  case  of  Fletcher  v.  Peck,  it  was  decided  in  this  court  on 
solemn  argument  and  much  deliberation,  that  this  provision  of  the 
Constitution  extends  to  contracts  to  which  a  state  is  a  party,  as  well 
as  to  contracts  between  individuals.  The  question  then  is  nar- 
rowed to  the  inquiry  whetiier  in  the  case  stated  a  contract  existed 
and  whether  that  contract  is  violated  by  the  act  of  1804. 

Every  requisite  to  the  formation  of  a  contract  is  found  in  the 
proceedings  between  the  then  colony  of  New  Jersey  and  the  In- 
dians. The  subject  was  a  purchase  on  the  part  of  the  government 
of  extensive  claims  of  the  Indians,  the  extinguishment  of  which 
would  quiet  the  title  to  a  large  portion  of  the  province.  A  proposi- 
tion to  this  effect  is  made,  the  terms  stipulated,  the  consideration 
agreed  upon,  which  is  a  tract  of  land  with  the  privilege  of  exemp- 
tion from  taxation;  and  then  in  consideration  of  the  arrangement 
previously  made,  one  of  which  this  act  of  assembly  is  stated  to  l)e, 
the  Indians  execute  their  deed  of  cession.  This  is  certainly  a  con- 
tract clothed  in  forms  of  unusual  solemnity.  The  privilege, 
though  for  the  benefit  of  the  Indians,  is  annexed,  by  the  terms 
which  create  it,  to  the  land  itself,  not  to  their  persons.  It  is  for 
their  advantage  that  it  should  be  annexed  to  the  land,  because,  in 
the  event  of  a  sale,  on  which  alone  the  question  could  become 
material,  the  value  would  be  enhanced  by  it. 

It  is  not  doubted  but  that  the  State  of  New  Jersey  might  have 
insisted 'on  a  surrender  of  this  privilege  as  the  sqLg  condition  on 
which  a  sale  of  the  property  should  be  allowed.  But  this  condition 
has  not  been  insisted  on.  The  land  has  been  sold,  with  the  assent 
of  the  state,  with  all  its  privileges  and  immunities.  The  purchaser 
succeeds,  with  the  assent  of  the  state,  to  all  the  rights  of  the  In- 
dians. He  stands,  with  respect  to  this  land,  in  their  place  and  claims 
the  benefit  of  their  contract.  This  contract  is  certainly  impaired 
by  a  law  which  would  annul  this  essential  part  of  it. 

Judgment  reversed  and  cause  remanded  to  New  Jersey  Court  of 
Errors} 

1  See  Given  v.  Wright,  117  U.  S.  648  (1886),  and  Choate  v.  Trapp,  224  U.  S. 
665,675-677  (1912).  — Ed. 


DARTMOUTH    COLLEGE    V.    WOODWARD.  279 

TRUSTEES  OF  DARTMOUTH  COLLEGE  v. 
WOODWARD. 

Supreme  Court  of  the  United  States.     1819. 
[i  Wheaton,  518.]  ^ 

Error  to  the  Superior  Court  of  the  State  of  New  Hampshire. 

This  was  an  action  of  trover  brought  by  the  trustees  of  Dart- 
mouth College,  a  corporation  chartered  in  1769  under  the  pubhc 
seal  of  the  province  of  New  Hampshire  by  George  the  Third,  for 
certain  record  books,  the  original  charter,  and  the  corporate  seal, 
all  of  which  were  in  possession  of  the  defendant,  as  secretary  and 
treasurer  of  the  board  of  trustees  organized  under  acts  of  the  legis- 
lature of  the  State  of  New  Hampshire  pa.ssed  in  1816  for  amending 
the  charter.  The  defendant  pleaded  the  general  issue.  The  jury 
found  a  special  verdict,  in  which  they  recited  the  acts  of  1816,  the 
material  parts  of  which  are  given  in  the  opinion,  and  the  charter  of 
1769,  in  which  charter  it  was  said,  among  other  things,  that  ''  We 
.  .  .  will,  ordain,  grant  and  constitute  that  there  be  a  college  erected 
in  our  said  province  of  New  Hampshire,  by  the  name  of  Dartmouth 
College,  for  the  education  ...  of  youth.  .  .  .  And  the  trustees 
....  may  and  shall  be  one  body  corporate  .  .  .  and  shall  be 
called  .  .  .  the  Trustees  of  Dartmouth  College.  ...  We  .  .  . 
do,  for  us,  our  heirs  and  successors,  .  .  .  will,  give,  grant,  consti- 
tute and  ordain,  that  there  shall  be  .  .  .  from  henceforth  and  for 
ever,  a  body  politic,  consisting  of  trustees  of  said  Dartmouth  Col- 
lege. .  .  .  We  .  .  .  do,  ...  for  us,  our  heirs  and  successors, 
make,  ordain,  constitute  and  appoint  "  certain  persons  to  be 
trustees,  the  charter  continuing  "  the  whole  number  of  said  trus- 
tees consisting,  and  hereafter  to  consist,  of  twelve  and  no  more 

And  we  do  .  .  .  for  us, our  heirs  and  .successors, ^vill, give, grant,  and 
appoint,  that  the  said  trustees  and  their  successors  .  .  .  shall  be 
able  ...  for  the  use  of  said  Dartmouth  College,  to  have,  get,  ac- 
quire, purchase, receive, hold, possess, and  enjoy  tenements, heredita- 
ments, jurisdictions,  and  franchises,  for  themselves  and  their 
successors,  in  fee  simple,  or  otherwise  howsoever.  .  .  .  And  also  to 
receive  and  dispose  of  any  lands,  goods,  chattels,  and  other  things 
.  .  .  for  the  use  aforesaid:  .  .  .  And  .  .  .  to  the  intent  that  our 
said  corporation  and  body  politic  may  answer  the  end  of  their  erec- 

1  The  reporter's  statement  has  not  been  reprinted ;  and  in  framing  a  new 
statement  some  use  has  been  made  of  Farrar's  Report  of  the  Case  of  Dartmouth 
College  against  Woodward.  —  Ed. 


280  THE  CONTRACT  CLAUSE. 

tion  and  constitution,  and  may  have  perpetual  succession  and  con- 
tinuance forever,  we  do,  for  us,  our  heirs  and  successors,  will, 
give  and  grant  unto  the  Trustees  of  Dartmouth  College,  and  to 
their  successors  forever,  that  there  shall  be,  once  a  year,  ...  a 
meeting  of  said  trustees  ...  at  such  time  as  by  said  trustees,  or 
the  major  part  of  them,  .  .  .  shall  be  agreed  on.  .  .  .  And  we 
do  also,  for  us,  our  heirs  and  successors,  hereby  will,  give,  and 
grant  .  .  .  that  when  any  seven  or  more  of  the  said  trustees,  or 
their  successors,  are  convened  .  .  .  such  seven  or  more  shall  be 
capable  to  act  ...  as  if  all  the  trustees  of  said  college  were  per- 
sonally present  —  and  all  affairs  .  .  .  shall  be  determined  by  the 
majority  ...  of  those  seven  or  more  trustees  so  convened.  .  .  . 
And  we  do  also  for  us,  our  heirs  and  successors,  will,  give  and  grant 
to  the  said  trustees  .  .  .,  and  to  their  successors  forever,  or  any 
seven  or  more  of  them,  convened  as  aforesaid,  .  .  .  that  the  said 
trustees  do  elect  .  .  .  such  qualified  person  as  they  .  .  .  shall 
think  fit,  to  be  president  of  said  Dartmouth  College,  .  .  .  tutors 
and  professors.  .  .  .  And  also,  that  the  said  trustees  and  their 
successors,  ...  as  often  as  one  or  more  of  said  trustees  shall 
die,  .  .  .  do  .  .  .  elect  .  .  .  such  trustee  or  trustees  as  shall 
supply  the  place.  .  .  .  And  lastly,  ...  we  do,  by  these  presents, 
for  us,  our  heirs  and  successors,  give  and  grant  unto  the  said  trus- 
tees .  .  .  and  to  their  successors  forever,  that  these  our  letters- 
patent,  on  the  enrolment  thereof  in  the  secretary's  office  of  our 
province  of  New  Hampshire  aforesaid,  shall  be  good  and  effectual 
in  the  law  .  .  .  against  us,  our  heirs  and  successors.  ...  To 
have  and  to  hold  all  and  singular  the  privileges,  advantages, 
liberties,  immunities,  and  all  other  the  premises  herein  antl  hereby 
granted,  .  .  .  unto  them,  the  said  trustees  of  Dartmouth  College, 
and  to  their  successors  forever.  In  testimony  whereof,  we  have 
caused  these  our  letters  to  be  made  patent,  and  the  public  seal  of 
our  said  province  of  New  Hampshire  to  be  hereunto  affixed.  Wit- 
ness our  trusty  and  well-beloved  John  Wentworth,  Esquire,  gov- 
ernor and  commander-in-chief  in  and  over  our  said  province,  etc., 
this  fifteenth  day  of  December,  in  the  tenth  year  of  our  reign,  and 
in  the  year  of  our  Lord  1769." 

Judgment  having  been  rendered  upon  the  special  verdict  by  the 
Superior  Court  of  New  Hampshire,  being  the  highest  court  of  the 
state,  for  the  defendant  below  (1  N.  H.  Ill  and  65  N.  H.  473), 
the  cause  was  brought  before  the  Supreme  Court  of  the  United 
States  by  writ  of  error. 


DARTMOUTH    COLLEGE   V.    WOODWARD.  281 

Webster  and  Hopkinson,  for  the  trustees;  and  Holmes  and  Wirt, 
Attorney  General,  contra. 

The  opinion  of  the  court  was  dehvered  by  Marshall,  C.  J.  .  .  . 

It  can  require  no  argument  to  prove,  that  the  circumstances  of 
this  case  constitute  a  contract.  An  appHcation  is  made  to  the 
crown  for  a  charter  to  incorporate  a  religious  and  literary  institu- 
tion. In  the  application,  it  is  stated  that  large  contributions  have 
been  made  for  the  object,  which  will  be  conferred  on  the  corpora- 
tion, as  soon  as  it  shall  be  created.  The  charter  is  granted,  and  on 
its  faith  the  property  is  conveyed.  Surely  in  this  transaction  every 
ingredient  of  a  complete  and  legitimate  contract  is  to  be  found. 

The  points  for  consideration  are, 

1.  Is  this  contract  protected  by  the  Constitution  of  the  United 
States  ? 

2.  Is  it  impaired  by  the  acts  under  which  the  defendant  holds  ? 

1.  On  the  first  point  it  has  been  argued,  that  the  word  "  con- 
tract," in  its  broadest  sense,  would  comprehend  the  political  rela- 
tions between  the  government  and  its  citizens,  would  extend  to 
offices  held  within  a  state  for  state  purposes,  and  to  many  of  those 
laws  concerning  civil  institutions,  which  must  change  with  cir- 
cumstances, and  be  modified  by  ordinary  legislation;  which  deeply 
concern  the  public,  and  which,  to  preserve  good  government,  the 
public  judgment  must  control.  That  even  marriage  is  a  contract, 
and  its  obligations  arc  affected  by  the  laws  respecting  divorces. 
That  the  clause  in  tlie  Constitution,  if  construed  in  its  greatest 
latitude,  would  prohibit  these  laws.  Taken  in  its  l)road  un- 
limited sense,  the  clause  would  be  an  unprofitable  and  vexatious 
interference  with  the  internal  concerns  of  a  state,  would  unneces- 
sarily and  unwisely  embarrass  its  legislation,  and  render  immutable 
those  civil  institutions,  which  are  established  for  purposes  of  inter- 
nal government,  and  which,  to  subserve  those  purposes,  ought  to 
vary  with  varying  circumstances.  That  as  the  framers  of  the  Con- 
stitution could  never  have  intended  to  insert  in  that  instrument  a 
provision  so  unnecessary,  so  mischievous,  and  so  repugnant  to  its 
general  spirit,  the  term  "  contract  "  must  be  understood  in  a  more 
limited  sense.  That  it  must  be  understood  as  intended  to  guard 
against  a  power  of  at  least  doubtful  utility,  the  abuse  of  which  had 
been  extensively  felt;  and  to  restrain  the  legislature  in  future  from 
violating  the  right  to  property.  That  anterior  to  the  formation  of 
the  Constitution,  a  course  of  legislation  had  prevailed  in  many,  if 
not  in  all,  of  the  states,  which  Aveakened  the  confidence  of  man  in 


282  THE  CONTRACT  CLAUSE. 

mail,  and  embarrassed  all  transactions  between  individuals,  by- 
dispensing  with  a  faithful  performance  of  engagements.  To  cor- 
rect this  mischief,  by  restraining  the  power  which  produced  it,  the 
state  legislatures  were  forbidden  "  to  pass  any  law  impairing  the 
obligation  of  contracts,"  that  is,  of  contracts  respecting  property, 
under  which  some  individual  could  claim  a  right  to  something 
beneficial  to  himself;  and  that  since  the  clause  in  the  Constitution 
must  in  construction  receive  some  limitation,  it  may  be  confined, 
and  ought  to  be  confined,  to  cases  of  this  description;  to  cases 
within  the  mischief  it  was  intended  to  remedy. 

The  general  correctness  of  these  observations  cannot  be  contro- 
verted. That  the  framers  of  the  Constitution  did  not  intend  to 
restrain  the  states  in  the  regulation  of  their  civil  institutions, 
adopted  for  internal  government,  and  that  the  instrument  they 
have  given  us  is  not  to  be  so  construed,  may  be  admitted.  The 
provision  of  the  Constitution  never  has  been  understood  to  embrace 
other  contracts  than  those  which  respect  property,  or  some  object 
of  value,  and  confer  rights  which  may  be  asserted  in  a  court  of 
justice.  .  .  . 

The  parties  in  this  case  differ  less  on  general  principles,  less  on 
the  true  construction  of  the  Constitution  in  the  abstract,  than  on 
the  application  of  those  principles  to  this  case,  and  on  the  true 
construction  of  the  charter  of  1769.  This  is  the  point  on  which 
the  cause  essentially  depends.  If  the  act  of  incorporation  be  a 
grant  of  political  power,  if  it  create  a  civil  institution  to  be  em- 
ployed in  the  administration  of  the  government,  or  if  the  funds  of 
the  college  be  public  property,  or  if  the  State  of  New  Hampshire, 
as  a  government,  be  alone  interested  in  its  transactions,  the  subject 
is  one  in  which  the  legislature  of  the  state  may  act  according  to  its 
own  judgment,  unrestrained  by  any  limitation  of  its  power  im- 
posed by  the  Constitution  of  the  United  States.  .  .  . 

Whence,  then,  can  be  derived  the  idea,  that  Dartmouth  College 
has  become  a  public  institution,  and  its  trustees  public  officers, 
exercising  powers  conferred  by  the  public  for  public  objects  ?  Not 
from  the  source  whence  its  funds  were  dra^\^l;  for  its  foundation  is 
purely  private  and  eleemosynary.  —  Not  from  the  application  of 
those  funds;  for  money  may  be  given  for  education,  and  the  per- 
sons receiving  it  do  not,  by  being  employed  in  the  education  of 
youth,  become  members  of  the  civil  government.  Is  it  from  the 
act  of  incorporation  ?     Let  this  subject  be  considered. 

A  corporation  is  an  artificial  being,  invisible,  intangilDle,  and 
existing  only  m  contemplation  of  law.     Being  the  mere  creature  of 


DARTMOUTH    COLLEGE    V.    WOODWARD.  283 

law,  it  possesses  onl}^  those  properties  which  the  charter  of  its 
creation  confers  upon  it,  either  expressly,  or  as  incidental  to  its 
very  existence.  .  .  .  But  this  being  does  not  share  in  the  civil 
government  of  the  country,  unless  that  be  the  purpose  for  which  it 
was  created.  Its  immortality  no  more  confers  on  it  political  power, 
or  a  political  character,  than  immortahty  would  confer  such  power 
or  character  on  a  natural  person.  It  is  no  more  a  state  instrument, 
than  a  natural  person  exercising  the  same  powers  would  be.  .  .  . 

From  the  fact,  then,  that  a  charter  of  incorporation  has  been  . 
granted,  nothing  can  be  inferred,  which  changes  the  character  of 
the  institution,  or  transfers  to  the  government  any  new  power  over 

it.  .  .  . 

Yet  a  question  remains  to  be  considered,  of  more  real  difficulty, 
on  which  more  doubt  has  been  entertained  than  on  all  that  have 
been  discussed.  The  founders  of  the  college,  at  least  those  whose 
contributions  were  ui  money,  have  parted  with  the  property  be- 
stowed upon  it,  and  their  representatives  have  no  interest  in  that 
property.  The  donors  of  land  are  equally  without  interest,  so  long 
as  the  corporation  shall  exist.  Could  they  be  fouixl,  they  are  un- 
affected by  any  alteration  in  its  constitution,  and  probably  re- 
gardless of  its  form,  or  even  of  its  existence.  The  students  are 
fluctuating,  and  no  individual  among  our  youth  has  a  vested  in- 
terest in  the  institution,  which  can  be  asserted  in  a  court  of  justice. 
Neither  the  founders  of  the  college,  nor  the  youth  for  whose  benefit 
it  was  founded,  complain  of  the  alteration  made  in  its  charter,  or 
think  themselves  injured  by  it.  The  trustees  alone  complain,  and 
the  trustees  have  no  beneficial  interest  to  be  protected.  Can  this 
be  such  a  contract,  as  the  Constitution  intended  to  withdraw  from 
the  power  of  state  legislation  ?  Contracts,  the  parties  to  which 
have  a  vested  beneficial  mterest,  and  those  only,  it  has  been  said, 
are  the  objects  about  which  the  Constitution  is  solicitous,  and  to 
which  its  protection  is  extended.  .  .  . 

An  artificial,  immortal  being  was  created  by  the  crown,  capable 
of  receiving  and  distributmg  forever,  according  to  the  will  of  the 
donors,  the  donations  which  should  be  marie  to  it.  On  this  being, 
the  contributions  which  had  been  collected  were  immediately  be- 
stowed. These  gifts  were  made,  not  indeed  to  make  a  profit  for 
the  donors,  or  their  posterity,  but  for  somethmg  in  their  opinion  of 
inestimable  value;  for  something  which  they  deemed  a  full  equiva- 
lent for  the  money  with  which  it  was  purchased.  The  considera- 
tion for  which  they  stipulated  is  the  perpetual  application  of  the 
fund  to  its  object,  in  the  mode  prescribed  by  themselves.     Their 


284  THE  CONTRACT  CLAUSE. 

descendants  may  take  no  interest  in  the  preservation  of  this  con- 
sideration. But  in  this  respect  their  descendants  are  not  their 
representatives.  They  are  represented  by  the  corporation.  The 
corporation  is  the  assignee  of  their  rights,  stands-in  their  place,  and 
chstributes  their  bounty,  as  they  would  themselves  have  distrib- 
uted it,  had  they  been  immortal.  So  with  respect  to  the  students 
who  are  to  derive  learning  from  this  source.  The  corporation  is  a 
trustee  for  them  also.  .  .  . 

This  is  plainly  a  contract  to  which  the  donors,  the  trustees,  and 
the  crown  (to  whose  rights  and  obligations  New  Hampshire  suc- 
ceeds), were  the  original  parties.  It  is  a  contract  made  on  a  valu- 
able consideration.  It  is  a  contract  for  the  security  and  disposition 
of  property.  It  is  a  contract,  on  the  faith  of  which,  real  and  per- 
sonal estate  has  been  conveyed  to  the  corporation.  It  is  then  a 
contract  within  the  letter  of  the  Constitution,  and  Avithin  its  spirit 
also,  unless  the  fact,  that  the  property  is  invested  by  the  donors  in 
trustees  for  the  promotion  of  religion  and  education,  for  the  benefit 
of  persons  who  are  perpetually  changing,  though  the  objects  remain 
the  same,  shalt  create  a  particular  exception,  taking  this  case  out 
of  the  prohibition  contained  in  the  Constitution. 

It  is  more  than  possible,  that  the  preservation  of  rights  of  this 
description  was  not  particularly  in  the  view  of  the  framers  of  the 
Constitution,  when  the  clause  under  consideration  was  introduced 
into  that  instrument.  It  is  prol)able,  that  interferences  of  more 
frequent  recurrence,  to  which  the  temptation  was  stronger,  and  of 
which  the  mischief  was  more  extensive,  constituted  the  great 
motive  for  imposing  this  restriction  on  the  state  legislatures.  But 
although  a  particular  and  a  rare  case  may  not,  in  itself,  be  of  suffi- 
cient magnitude  to  induce  a  rule,  yet  it  must  be  governed  by  the 
rule,  when  established,  unless  some  plain  and  strong  reason  for 
excluding  it  can  be  given.  It  is  not  enough  to  say,  that  this  partic- 
ular case  was  not  in  the  mind  of  the  Convention,  when  the  article 
was  framed,  nor  of  the  American  people,  when  it  was  adopted.  It 
is  necessary  to  go  farther,  and  to  say  that,  had  this  particular  case 
been  suggested,  the  language  would  have  been  so  varied  as  to  ex- 
clude it,  or  it  would  have  been  made  a  special  exception.  The  case 
being  within  the  words  of  the  rule,  must  be  within  its  operation 
likewise,  unless  there  be  something  in  the  literal  construction  so 
obviously  absurd,  or  mischievous,  or  repugnant  to  the  general  spirit 
of  the  instrument,  as  to  justify  those  who  expound  the  Constitution 
in  making  it  an  exception.  .  .  . 


DARTMOUTH    COLLEGE   V.    WOODWARD.  285 

If  the  insignificance  of  tlie  object  does  not  require  that  we  should 
exclude  contracts  respecting  it  from  the  protection  of  the  Constitu- 
tion; neither,  as  we  conceive,  is  the  policy  of  leaving  them  subject 
to  legislative  alteration  so  apparent,  as  to  require  a  forced  construc- 
tion of  that  instrument  in  order  to  effect  it.  ...  It  requires  no 
very  critical  examination  of  the  human  mind  to  enable  uS  to  deter- 
mine, that  one  great  inducement  to  these  gifts  is  the  conviction  felt 
by  the  giver,  that  the  disposition  "he  makes  of  them  is  immutable. 
It  is  probable,  that  no  man  ever  was,  and  that  no  man  ever  will  be, 
the  founder  of  a  college,  believing  at  the  time,  that  an  act  of  incor- 
poration constitutes  no  security  for  the  institution;  believing,  that 
it  is  immediately  to  be  deemed  a  public  institution,  whose  funds  are 
to  be  governed  and  applied,  not  by  the  aWII  of  the  donor,  but  by  the 
will  of  the  legislature.  All  such  gifts  are  made  in  the  pleasing, 
perhaps  delusive  hope,  that  the  charity  will  flow  forever  in  the 
channel  which  the  givers  have  marked  out  for  it.  If  every  man 
finds  in  his  own  bosom  strong  evidence  of  the  universality  of  this 
sentiment,  there  can  be  but  little  reason  to  imagine,  that  the 
framers  of  our  Constitution  were  strangers  to  it,  and  that,  feeling 
the  necessity  and  policy  of  giving  permanence  and  security  to  con- 
tracts, of  withdrawing  them  from  the  influence  of  legislative  bodies, 
whose  fluctuating  policy,  and  repeated  interferences,  produced  the 
most  perplexing  and  injurious  embarrassments,  they  still  deemed  it 
necessary  to  leave  these  contract's  subject  to  those  interferences. . . . 

The  opinion  of  the  court,  after  mature  deliberation,  is,  that  this 
is  a  contract,  the  obligation  of  which  cannot  be  impaired,  without 
violating -the  Constitution  of  the  United  States.  This  opinion 
appears  to  us  to  be  equally  supported  by  reason,  and  by  the  former 
decisions  of  this  court. 

2.  We  next  proceed  to  the  inquiry,  whether  its  obligation  has 
been  impaired  by  those  acts  of  the  legislature  of  New  Hampshire, 
to  which  the  special  verdict  refers. 

From  the  review  of  this  charter,  which  has  been  taken,  it  appears, 
that  the  whole  power  of  governing  the  college,  of  appointing  and 
removing  tutors,  of  fixing  their  salaries,  of  directing  the  course  of 
study  to  be  pursued  by  the  students,  and  of  filling  up  vacancies 
created  in  their  own  body,  was  vested  in  the  trustees.  On  the  part 
of  the  crowTi  it  was  expressly  stipulated,  that  this  corporation,  thus 
constituted,  should  continue  forever;  and  that  the  number  of 
trustees  should  forever  consist  of  twelve,  and  no  more.  By  this 
contract  the  crowm  was  bound,  and  could  have  made  no  violent 
alteration  in  its  essential  terms,  without  impairing  its  obUgation. 


286  THE  CONTRACT  CLAUSE. 

By  the  revolution,  the  duties,  as  well  as  the  powers,  of  govern- 
ment devolved  on  the  people  of  New  Hampshire.  It  is  admitted, 
that  among  the  latter  was  comprehended  the  transcendent  power 
of  parliament,  as  well  as  that  of  the  executive  department.  It  is 
too  clear  to  require  the  support  of  argument,  that  all  contracts,  and 
rights,  respecting  property,  remained  unchanged  by  the  revolution. 
The  obligations  then,  which  were  created  by  the  charter  to  Dart- 
mouth College,  were  the  same  in  the  new,  that  they  had  been  in  the 
old  government.  The  power  of  the  government  was  also  the  same. 
A  repeal  of  this  charter  at  any  time  prior  to  the  adoption  of  the 
present  Constitution  of  the  United  States  would  have  been  an 
extraordinary  and  unprecedented  act  of  power,  but  one  which 
could  have  been  contested  only  by  the  restrictions  upon  the  legis- 
lature, to  be  found  in  the  constitution  of  the  state.  But  the 
Constitution  of  the  United  States  has  imposed  this  additional 
limitation,  that  the  legislature  of  a  state  shall  pass  no  act  "  im- 
pairing the  obligation  of  contracts."  .  .  . 

The  act  "  to  amend  the  charter,  and  enlarge  and  improve  the 
corporation  of  Dartmouth  College,"  increases  the  number  of  trus- 
tees to  twenty-one,  gives  the  appointment  of  the  additional  mem- 
bers to  the  executive  of  the  state,  and  creates  a  board  of  overseers, 
to  consist  of  twenty-five  persons,  of  whom  twenty-one  are  also 
appointed  by  the  executive  of  New  Hampshire,  who  have  power 
to  inspect  and  control  the  most  important  acts  of  the  trustees. 

On  the  effect  of  this  law,  two  opinions  cannot  be  entertained. 
Between  acting  directly,  and  acting  through  the  agency  of  trustees 
and  overseers,  no  essential  difference  is  perceived.  The  whole 
power  of  governing  the  college  is  transferred  from  trustees  ap- 
pointed according  to  the  will  of  the  founder,  expressed  in  the  char- 
ter, to  the  executive  of  New  Hampshire.  The  management  and 
application  of  the  funds  of  this  eleemosynary  institution,  which  are 
placed  by  the  donors  in  the  hands  of  trustees  named  in  the  charter, 
and  empowered  to  perpetuate  themselves,  are  placed  by  this  act 
under  the  control  of  the  government  of  the  state.  The  will  of  the 
state  is  substituted  for  the  will  of  the  donors,  in  every  essential 
operation  of  the  college.  This  is  not  an  immaterial  change.  The 
founders  of  the  college  contracted,  not  merely  for  the  perpetual 
application  of  the  funds  which  they  gave,  to  the  objects  for  which 
those  funds  were  given;  they  contracted  also,  to  secure  that  appli- 
cation by  the  constitution  of  the  corporation.  They  contracted 
for  a  system,  which  should,  as  far  as  human  foresight  can  provide, 
retain  forever  the  government  of  the  literary  institution  they  had 


STURGES   V.    CROWNINSHIELD.  287 

formed,  in  the  hands  of  persons  approved  by  themselves.  This 
system  is  totally  changed.  The  charter  of  1769  exists  no  longer.  .  .  . 

It  results  from  this  opinion,  that  the  acts  of  the  legislature  of 
New  Hampshire,  which  are  stated  in  the  special  verdict  found  in 
this  cause,  are  repugnant  to  the  Constitution  of  the  United  States; 
and  that  the  judgment  on  this  special  verdict  ought  to  have  been 
for  the  plaintiffs.  The  judgment  of  the  state  court  must,  there- 
fore, be  reversed. 

Washington,  J.  .  .  . 

Johnson,  J.,  concurred,  for  the  reasons  stated  by  the  Chief 
Justice. 

Livingston,  J.,  concurred,  for  the  reasons  stated  by  the  Chief 
Justice,  and  Justices  Washington  and  Story. 

Story,  J.  .  .  . 

DuvALL,  J.,  dissented.^ 


STURGES  V.   CROWNINSHIELD. 

Supreme  Court  of  the  United  States.     1819. 

[4  Wheaton,  122.]  ^ 

This  was  an  action  brought  in  the  United  States  Circuit  Court 
for  the  District  of  Massachusetts  against  the  maker  of  two  promis- 
sory notes,  dated  New  York,  March  22,  1811,  payable  to  the  plain- 
tiff on  Aug.  1  and  Aug.  15,  1811,  respectively.  The  defendant 
pleaded  his  discharge  under  "  an  act  for  the  benefit  of  insolvent 
debtors  and  their  creditors,"  passed  by  the  legislature  of  New 
York,  Apr.  3,  1811.^  On  demurrer  to  the  plea,  questions  arose 
which  the  judges,  being  opposed  in  opinion,  certified  to  the  Supreme 
Court  of  the  United  States. 

Daggett  and  Hopkinson,  for  plaintiff;  and  Hunter  and  D.  B. 
Ogden,  contra. 

1  Historical  material  may  be  found  in  Shirley's  The  Dartmouth  College 
Causes.  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 
»  N.  Y.  Session  Laws,  1810-11,  p.  200.  —  Ed. 


288  THE  CONTRACT  CLAUSE. 

Marshall,  C.  J.,  delivered  the  oi)inion  of  the  court.  .  .  . 

We  proceed  to  the  great  question  on  which  the  cau.se  must  de- 
pend. Does  the  law  of  New  York,  which  is  i)lcaded  in  this  case, 
impair  the  obligation  of  contracts,  within  the  meaning  of  the  Con- 
stitution of  the  United  States  ? 

This  act  liberates  the  person  of  the  debtor,  and  discharges  him 
from  all  lial)ility  for  any  debt  previously  contracted,  on  his  sur- 
rendering his  property  in  the  manner  it  prescribes. 

In  discussing  the  question  whether  a  state  is  prohibited  from 
passing  such  a  law  as  this,  our  first  inquiry  is  into  the  meaning  of 
words  in  common  use,  What  is  the  oljligation  of  a  contract  ?  and 
what  will  impair  it  ? 

It  would  seem  difficult  to  substitute  words  which  are  more  in- 
telligible, or  less  liable  to  misconstruction,  than  those  which  are  to 
be  explained.  A  contract  is  an  agreement  in  which  a  party  under- 
takes to  do,  or  not  to  do,  a  particular  thing.  The  law  binds  him  to 
perform  his  undertaking,  and  this  is,  of  course,  the  obligation  of  his 
contract.  In  the  case  at  l)ar,  the  defendant  has  given  his  promis- 
sory note  to  pay  the  plaintiff  a  sum  of  money  on  or  before  a  certain 
day.  The  contract  binds  him  to  pay  that  sum  on  that  day;  and 
this  is  its  oljligation.  Any  law  which  releases  a  part  of  this  obliga- 
tion, must,  in  the  literal  sense  of  the  word,  impair  it.  Much  more 
must  a  law  impair  it  which  makes  it  totally  invalid,  and  entirely 
discharges  it. 

The  words  of  the  Constitution,  then,  are  express,  and  incapable 
of  being  misunderstood.  They  admit  of  no  variety  of  construction, 
and  are  acknowledged  to  apply  to  that  species  of  contract,  an  en- 
gagement between  man  and  man  for  the  payment  of  money,  which 
has  been  entered  into  by  these  parties.  Yet  the  opinion  that  this 
law  is  not  within  the  prohibition  of  the  Constitution  has  been  enter- 
tained by  those  who  are  entitled  to  great  respect,  and  has  been 
supported  by  arguments  which  deserve  to  be  seriously  considered. 

It  has  been  contended,  that  as  a  contract  can  only  bind  a  man  to 
pay  to  the  full  extent  of  his  property,  it  is  an  implied  condition  that 
he  may  be  discharged  on  surrendering  the  whole  of  it. 

But  it  is  not  true  that  the  parties  have  in  view  only  the  property 
in  possession  when  the  contract  is  formed,  or  that  its  obligation 
does  not  extend  to  future  acquisitions.  Industry,  talents,  and 
integrity,  constitute  a  fund  which  is  as  confidently  trusted  as 
property  itself.  Future  acquisitions  are,  therefore,  liable  for 
contracts;  and  to  release  them  from  this  liability  impairs  their 
obligation.  .  .  . 


STURGES   V.    CROWNINSHIELD.  289 

The  argument  which  has  been  pressed  most  earnestly  at  the  bar, 
is,  that  although  all  legislative  acts  which  discharge  the  obligation 
of  a  contract  without  performance,  are  within  the  very  words  of  the 
Constitution,  yet  an  insolvent  act,  containing  this  principle,  is  not 
within  its  spirit,  because  such  acts  have  been  passed  by  colonial 
and  state  legislatures  from  the  first  settlement  of  the  country,  and 
because  we  know  from  the  history  of  the  times,  that  the  mind  of  the 
Convention  was  directed  to  other  laws  which  were  fraudulent  in 
their  character,  which  enabled  the  debtor  to  escape  from  his  obli- 
gation, and  yet  hold  his  property,  not  to  this,  which  is  beneficial  m 
its  operation. 

Before  discussing  this  argument,  it  may  not  be  improper  to 
premise  that,  although  the  spirit  of  an  instrument,  especially  of  a 
constitution,  is  to  be  respected  not  less  than  its  letter,  yet  the  spirit 
is  to  be  collected  chiefly  from  its  words.  It  would  be  dangerous  in 
the  extreme  to  infer  from  extrinsic  circumstances,  that  a  case  for 
which  the  words  of  an  instrument  expressly  provide,  shall  be 
exempted  from  its  operation.  Where  words  conflict  with  each 
other,  where  the  different  clauses  of  an  instrument  bear  upon  each 
other,  and  would  be  inconsistent  unless  the  natural  and  common 
import  of  words  be  varied,  construction  becomes  necessary,  and  a 
departure  from  the  obvious  meaning  of  words  is  justifiable.  But 
if,  in  any  case,  the  plain  meaning  of  a  provision,  not  contradicted 
by  any  other  provision  in  the  same  instrument,  is  to  be  disregarded, 
because  we  believe  the  framers  of  that  instrument  could  not  intend 
what  they  say,  it  must  be  one  in  which  the  absurdity  and  injustice 
of  applying  the  provision  to  the  case,  would  be  so  monstrous,  that 
all  mankind  would,  -svithout  hesitation,  unite  in  rejecting  the  appli- 
cation. 

This  is  certainly  not  such  a  case.  It  is  said  the  colonial  and 
state  legislatures  have  been  in  the  habit  of  passing  laws  of  this 
description  for  more  than  a  century;  that  they  have  never  been  the 
subject  of  complaint,  and,  consequently,  could  not  be  within  the 
view  of  the  general  Convention. 

The  fact  is  too  broadly  stated.  The  insolvent  laws  of  many, 
indeed,  of  by  far  the  greater  number  of  the  states,  do  not  contain 
this  principle.  They  discharge  the  person  of  the  debtor,  but  leave 
his  obligation  to  pay  in  full  force.  To  this  the  Constitution  is  not 
opposed. 

But,  were  it  even  true  that  this  principle  had  been  introduced 
generally  into  those  laws,  it  would  not  justify  our  varying  the  con- 
struction of  the  section.     Every  state  in  the  Union,  both  while  a 


290  THE  CONTRACT  CLAUSE. 

colony  and  after  becoming  independent,  had  ])ecn  in  the  practice 
of  issuing  paper  money;  yet  tliis  practice  is  in  terms  prohibited. 
If  the  long  exercise  of  the  power  to  emit  bills  of  credit  did  not  re- 
strain the  Convention  from  prohibiting  its  future  exercise,  neither 
can  it  be  said  that  the  long  exercise  of  the  power  to  impair  the  obli- 
gation of  contracts,  should  prevent  a  similar  prohibition.  It  is  not 
admitted  that  the  prohibition  is  more  express  in  the  one  case  than 
in  the  other.  It  does  not  indeed  extend  to  insolvent  laws  by  name, 
because  it  is  not  a  law  by  name,  but  a  principle  which  is  to  l)e  for- 
bidden; and  this  principle  is  described  in  as  appropriate  terms  as 
our  language  affords. 

Neither,  as  we  conceive,  will  any  admissible  rule  of  construction 
justify  us  in  limiting  the  prohibition  under  consideration,  to  the 
particular  laws  which  have  been  described  at  the  bar,  and  which 
furnished  such  cause  for  general  alarm.  What  were  those 
laws  ? 

We  are  told  they  were  such  as  grew  out  of  the  general  distress 
following  the  war  in  which  our  independence  was  established.  To 
relieve  this  distress,  paper  money  was  issued,  worthless  lands,  and 
other  property  of  no  use  to  the  creditor,  were  made  a  tender  in  pay- 
ment of  debts;  and  the  time  of  payment,  stipulated  in  the  contract, 
was  extended  by  law.  These  were  the  peculiar  evils  of  the  day. 
So  much  mischief  was  done,  and  so  much  more  was  apprehended, 
that  general  distrust  prevailed,  and  all  confidence  between  man 
and  man  was  destroyed.  To  laws  of  this  description  therefore,  it 
is  said,  the  prohibition  to  pass  laws  impairing  the  obligation  of 
contracts  ought  to  be  confined. 

Let  this  argument  be  tried  by  the  words  of  the  section  under  con- 
sideration. 

Was  this  general  prohibition  intended  to  prevent  paper  money  ? 
We  are  not  allowed  to  say  so,  because  it  is  expressly  provided,  that 
no  state  shall  "  emit  bills  of  credit  ";  neither  could  these  words  be 
intended  to  restrain  the  states  from  enabling  debtors  to  discharge 
their  debts  by  the  tender  of  property  of  no  real  value  to  the  credi- 
tor, because  for  that  subject  also  particular  provision  is  made. 
Nothing  but  gold  and  silver  coin  can  be  made  a  tender  in  payment 
of  debts. 

It  remains  to  inquire,  whether  the  prohibition  under  considera- 
tion could  be  intended  for  the  single  case  of  a  law  directing  that 
judgments  should  be  carried  into  execution  by  instalments. 

This  question  will  scarcely  admit  of  discussion.  If  this  was  the 
only  remaining  mischief  against  which  the  Constitution  intended  to 


STURGES   V.    CROWNINSHIELD.  291 

provide,  it  would  undoubtedly  have  been,  like  paper  money  and 
tender  laws,  expressly  forbidden.  At  any  rate,  terms  more 
directly  applicable  to  the  subject,  more  appropriately  expressing 
the  uitention  of  the  Convention,  would  have  been  used.  It  seems 
scarcely  possible  to  suppose  that  the  framers  of  the  Constitution,  if 
intending  to  prohibit  only  laws  authorizing  the  payment  of  debts 
by  instalment,  would  have  expressed  that  uitention  by  sayuig 
"  no  state  shall  pass  any  law  impairing  the  obligation  of  contracts." 
No  men  would  so  express  such  an  intention.  No  men  would  use 
terms  embracing  a  whole  class  of  laws,  for  the  purpose  of  designat- 
ing a  single  mdividual  of  that  class.  No  court  can  be  justified  in 
restricting  such  comprehensive  words  to  a  particular  mischief  to 
which  no  allusion  is  made. 

The  fair,  and,  we  thuik,  the  necessary  construction  of  the  sen- 
tence, requires,  that  we  should  give  these  M'ords  their  full  and  ob- 
vious meaning.  A  general  dissatisfaction  with  that  lax  system  of 
legislation  which  followed  the  war  of  our  revolution  undoubtedly 
directed  the  mind  of  the  Convention  to  this  subj  ect.  It  is  probable 
that  laws  such  as  those  which  have  been  stated  in  argument,  pro- 
duced the  loudest  complauiis,  were  most  immediately  felt.  The 
attention  of  the  Convention,  therefore,  was  particularly  directed 
to  paper  money,  and  to  acts  which  enabled  the  debtor  to  discharge 
his  debt,  otherwise  than  was  stipulated  m  the  contract.  Had 
nothing  more  been  intended,  nothing  more  would  have  been  ex- 
pressed. But,  in  the  opinion  of  the  Convention,  much  more  re- 
mained to  be  done.  The  same  mischief  might  be  effected  by  other 
means.  To  restore  public  confidence  completely,  it  was  necessary 
not  only  to  prohibit  the  use  of  particular  means  by  which  it  might 
be  effected,  but  to  prohil)it  the  use  of  any  means  by  which  the  same 
mischief  might  be  produced.  The  Convention  appears  to  have 
intended  to  establish  a  great  principle,  that  contracts  should  be 
inviolable.  The  Constitution,  therefore,  declares,  that  no  state 
shall  pass  "  any  law  impairing  the  obligation  of  contracts." 

If,  as  we  think,  it  must  be  admitted  that  this  intention  might 
actuate  the  Convention;  that  it  is  not  only  consistent  with,  but  is 
apparently  manifested  by,  all  that  part  of  the  section  which  re- 
spects this  subject;  that  the  words  used  are  well  adapted  to  the 
expression  of  it;  that  violence  would  be  done  to  their  plain  mean- 
ing by  understanding  them  in  a  more  limited  sense;  those  rules  of 
construction,  which  have  been  consecrated  by  the  wdsdom  of  ages, 
compel  us  to  say,  that  these  words  prohibit  the  passage  of  any  law 
discharging  a  contract  "without  performance. 


292  THE  CONTRACT  CLAUSE. 

By  way  of  analogy,  the  statutes  of  limitations,  and  against  usury, 
have  been  referred  to  in  argument;  and  it  has  been  supposed  that 
the  construction  of  the  Constitution,  which  this  opinion  maintains, 
would  apply  to  them  also,  and  must  therefore  be  too  extensive  to  be 
correct. 

We  do  not  think  so.  Statutes  of  limitations  relate  to  the  reme- 
dies which  are  furnished  in  the  courts.  They  rather  establish,  that 
certain  circumstances  shall  amount  to  evidence  that  a  contract  has 
been  performed,  than  dispense  with  its  performance.  If,  in  a  state 
where  six  years  may  be  pleaded  in  bar  to  an  action  of  assumpsit,  a 
law  should  pass  declaring  that  contracts  already  in  existence,  not 
barred  by  the  statute,  should  be  construed  to  be  within  it,  there 
could  be  little  doubt  of  its  unconstitutionality. 

So  with  respect  to  the  laws  against  usury.  If  the  law  be,  that 
no  person  shall  take  more  than  six  per  centum  per  annum  for  the 
use  of  money,  and  that,  if  more  be  reserved,  the  contract  shall  be 
void,  a  contract  made  thereafter,  reservmg  seven  per  cent,  would 
have  no  obligation  in  its  commencement;  but  if  a  law  should  de- 
clare that  contracts  already  entered  into,  and  reserving  the  legal 
interest,  should  be  usurious  and  void,  either  in  the  whole  or  in  part, 
it  would  impair  the  obligation  of  the  contract,  and  would  be  clearly 
unconstitutional. 

This  opinion  is  confined  to  the  case  actually  under  consideration. 
It  is  confined  to  a  case  in  which  a  creditor  sues  in  a  court,  the  pro- 
ceedings of  which  the  legislature,  whose  act  is  pleaded,  had  not  a 
right  to  control,  and  to  a  case  where  the  creditor  had  not  proceeded 
to  execution  against  the  body  of  his  debtor,  within  the  state  whose 
law  attemp'ts  to  absolve  a  confined  insolvent  debtor  from  his  obliga- 
tion.    When  such  a  case  arises,  it  will  be  considered. 

It  is  the  opinion  of  the  Court,  that  the  act  of  the  State  of  New 
York,  which  is  pleaded  by  the  defendant  in  this  cause,  so  far  as  it 
attempts  to  discharge  this  defendant  from  the  debt  in  the  declara- 
tion mentioned,  is  contrary  to  the  Constitution  of  the  United 
States,  and  that  the  plea  is  no  bar  to  the  action. 

Certificate.  .  .  .  This  Court  is  of  opinion,  that,  since  .  .  .  the 
Constitution  of  the  United  States,  a  state  has  authority  to  pass  a 
bankrupt  law,  provided  such  law  does  not  impair  the  obligation  of 
contracts,  .  .  .  and  provided  there  be  no  act  of  Congress  in  force  to 
establish  a  uniform  system  of  bankruptcy,  conflicting  with  such  law. 
ThisCourtis  further  of  opinion,  that  the  act  of  New  York,  .  .  .  so  far 
as  it  attempts  to  discharge  the  contract  on  which  this  suit  was  instituted, 
is  a  law  impairing  the  obligation  of  contracts.  .  .  .  All  which  is 
directed  to  be  certified  to  the  said  Circuit  Court. 


GREEN    V.    BIDDLE.  293 

GREEN  and  others  v.  BIDDLE. 
Supreme  Court  of  the  United  States.     1823. 

[8  Wheaton,  l.]i 

This  case  came  from  the  Circuit  Court  of  the  United  States  for 
the  District  of  Kentucky,  on  a  certificate  of  division  in  opinion. 

Green  and  others,  by  writ  of  right,  demanded  from  Biddle  certain 
land  in  Kentucky.  The  demandants  and  the  tenant  both  claimed 
the  land  under  patents  from  Virginia,  prior  to  the  erection  of  Ken- 
tucky into  a  state.  The  compact  between  Virginia  and  Kentucky, 
on  the  separation  of  the  latter,  became  part  of  the  Constitution  of 
Kentucky;  and  the  seventh  article  of  the  compact  contained  a 
provision  that  "  all  private  rights  and  interests  in  lands  "  within 
Kentucky,  "  derived  from  the  laws  of  Virginia,  shall  remain  valid 
and  secure  under  the  laws  "  of  Kentucky,  and  ''  shall  be  deter- 
mined by  the  laws  now  existing  "  in  Virginia. 

A  Kentucky  act  of  1797  provided,  among  other  things,  that  an 
evicted  occupant  who  entered  peaceably  and  showed  a  title  de- 
duced from  some  record  should  be  excused  from  paying  rents  and 
profits  accrued  prior  to  notice  of  the  adverse  title,  and  that  the 
successful  claimant  should  be  subject  to  a  judgment  for  valuable 
and  lasting  improvements  prior  to  notice,  after  deducting  damage 
to  the  soil.  An  act  of  1812  amended  the  earher  act  by  providing, 
among  other  things,  that  the  successful  claimant  might  avoid  pay- 
ing for  improvements  by  electing  to  relinquish  the  land  and  to 
receive  its  unimproved  value.  The  questions  asked  were:  (1) 
whether  the  acts  were  constitutional,  and  (2)  which  of  the  acts 
should  apply  to  this  suit,  the  act  of  1812  having  been  passed  after 
the  suit  was  begun  and  before  judgment  was  rendered  for  the  de- 
mandant. 

Feb.  16,  1821.     Talbot  and  B.  Hardin,  for  demandants. 

Mar.  5,  1821.     Story,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

We  should  have  been  glad  ...  to  have  had  the  benefit  of  an 
argument  on  behalf  of  the  tenant.  .  .  . 

The  language  of  the  seventh  article  .  .  .  plainly  imports  .  .  . 
that  these  rights  and  interests,  as  to  their  nature  and  extent,  shall 
be  exclusively  determined  by  the  laws  of  \'irginia,  and  that  their 
security  and  validity  shall  not  be  in  any  way  impaired  by  the  laws 
of  Kentucky.     Whatever  law,  therefore,  of  Kentucky,  does  nar- 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


294  THE  CONTRACT  CLAUSE. 

row  these  rights  and  dimmish  these  interests,  is  a  violation  of  the 
compact,  and  is  consequently  imconstitutional.  .  .  . 

It  is  no  answer,  that  the  acts  of  Kentucky,  now  in  question,  are 
regulations  of  the  remedy,  and  not  of  the  right  to  lands.  If  those 
acts  so  change  the  nature  and  extent  of  existing  remedies,  as  mate- 
rially to  impair  the  rights  and  mterests  of  the  owner,  they  are  just 
as  much  a  violation  of  the  compact,  as  if  they  directly  overturned 
his  rights  and  interests. 

It  is  the  unanimous  opinion  of  the  Court,  that  the  acts  of  1797 
and  1812  are  a  violation  of  the  seventh  article  of  the  compact  with 
Virginia,  and,  therefore,  are  unconstitutional.  .  .  .^ 

Mar.  12,  1821.  Clay,  as  amicus  curiae,  moved  for  a  rehearing  m 
the  cause,  upon  the  ground  that  it  involved  the  rights  and  claims 
of  numerous  occupants.  ...  He  stated,  that  the  rights  and  in- 
terests of  those  claimants  would  be  irre\-ocably  determined  by  this 
decision  of  the  court,  the  tenant  in  the  present  case  having  per- 
mitted it  to  be  brought  to  a  hearing,  without  appearing  by  counsel, 
and  without  any  argument  on  that  side  of  the  question.     .     .     . 

■Motion  granted. 

Mar.  8-11,  1822.  Montgomery  and  B.  Hardin,  for  demandant; 
and  Bibb  and  Clay,  contra. 

Feb.  27,  1823.     Washington,  J.,  delivered  the  opinion  of  the 

court.  .  .  . 

These  laws  differ  from  each  other  only  in  degree;  in  principle 
they  are  the  same.  They  agree  in  depriving  the  rightful  owner  of 
the  land  of  the  rents  and  profits  received  by  the  occupant  up  to  a 
certain  period,  the  first  act  fixing  it  to  the  time  of  actual  notice  of 
the  adverse  claim,  and  the  latter  act  to  the  time  of  the  judgment 
rendered  against  the  occupant.  They  also  agree  m  compelling  the 
successful  claimant  to  pay,  to  a  certain  extent,  the  assessed  value 
of  the  improvements  made  on  the  land  by  the  occupant.  .  .  . 

Nothmg  .  .  .  can  be  more  clear,  upon  principles  of  law  and  rea- 
son, than  that  a  law  which  denies  to  the  owTier  of  land  a  remedy  to 
recover  the  possession  of  it,  when  withheld  by  any  person,  however 
innocently  he  may  have  obtamed  it;  or  to  recover  the  profits  re- 
ceived from  it  by  the  occupant;  or  which  clogs  his  recovery  of  such 
possession  and  profits,  by  conditions  and  restrictions  tending  to 
dimmish  the  value  and  amount  of  the  thmg  recovered,  impairs  his 
right  to,  and  mterest  m,  the  property.  If  there  be  no  remedy  to 
recover  the  possession,  the  law  necessarily  presumes  a  want  of 

1  Present  Marshall,  C.  J.,  and  Johnson,  Livingston,  Todd,  Dm' all, 
and  Story,  JJ.  —  Rep. 


GREEN   V.    BIDDLE.  295 

right  to  it.  If  the  remedy  afforded  be  qualified  and  restrained  by 
conditions  of  any  kind,  the  right  of  the  o\\aier  may  indeed  subsist, 
and  be  aclaiowledged,  but  it  is  impaired,  and  rendered  insecure, 
according  to  the  nature  and  extent  of  such  restrictions.  .  .  . 

We  take  it  to  be  perfectly  clear,  that,  according  to  the  common 
law,  the  statute  law  of  Virginia,  the  principles  of  equity,  and  even 
those  of  the  civil  law,  the  successful  claimant  of  land  is  entitled  to 
an  account  of  the  mesne  profits  received  by  the  occupant  from  some 
period  prior  to  the  judgment  of  eviction,  or  decree.  In  a  real  ac- 
tion, as  this  is,  no  restriction  whatever  is  imposed  by  the  law  of 
Virginia  upon  the  recognitors,  in  assessing  the  damages  for  the 
demandant,  except  that  they  should  be  commensurate  with  the 
withholding  of  the  possession. 

If  this  act  of  Kentucky  renders  the  rights  of  claimants  to  lands, 
under  Virginia,  less  valid  and  secure  than  they  were  under  the  laws 
of  Virginia,  by  depriving  them  of  the  fruits  of  their  land,  during  its 
occupation  by  another,  its  provisions,  in  regard  to  the  value  of  the 
improvements  put  upon  the  land  by  the  occupant,  can,  with  still 
less  reason,  be  vindicated.  It  is  not  alleged  by  any  person,  that 
such  a  claim  was  ever  sanctioned  by  any  law  of  Virginia,  or  by  her 
courts  of  justice.  .  .  . 

The  objection  to  a  law,  on  the  ground  of  its  impairing  the  obliga- 
tion of  a  contract,  can  never  depend  upon  the  extent  of  the  change 
which  the  law  effects  in  it.  Any  deviation  from  its  terms,  by 
postponing,  or  accelerating,  the  period  of  performance  which  it  pre- 
scribes, imposing  conditions  not  expressed  in  the  contract,  or  dis- 
pensing with  the  performance  of  those  which  are,  however  minute, 
or  apparently  immaterial,  in  their  effect  upon  the  contract  of  the 
parties,  impairs  its  obligation.  Upon  this  principle  it  is,  that  if  a 
creditor  agree  with  his  debtor  to  postpone  the  day  of  payment,  or 
in  any  other  way  to  change  the  terms  of  the  contract,  without  the 
consent  of  the  surety,  the  latter  is  discharged,  although  the  change 
was  for  his  advantage.  .  .  . 

The  duty,  not  less  than  the  power  of  this  court,  as  well  as  of 
every  other  court  m  the  Union,  to  declare  a  law  unconstitutional, 
which  impairs  the  obHgation  of  contracts,  whoever  may  be  the 
parties  to  them,  is  too  clearly  enjoined  by  the  Constitution  itself, 
and  too  firmly  established  by  the  decisions  of  this  and  other  courts, 
to  be  now  shaken;  and  .  .  .  those  decisions  entirely  cover  the  pres- 
ent case. 

A  slight  effort  to  prove  that  a  compact  between  two  states  is  not 
a  case  withm  the  meaning  of  the  Constitution,  which  speaks  of 


29G  THE  CONTRACT  CLAUSE. 

contracts,  was  made  by  the  counsel  for  the  tenant,  but  was  not  much 
pressed.  If  we  attend  to  the  definition  of  a  contract,  which  is  the 
agreement  of  two  or  more  parties,  to  do,  or  not  to  do,  certain  acts, 
it  must  be  obvious,  that  the  proposition  offered,  and  agreed  to  by 
Virginia,  being  accepted  and  ratified  by  Kentucky,  is  a  contract. 
In  fact,  the  terms  compact  and  contract  are  synonymous :  and  in 
Fletcher  v.  Peck,  the  Chief  Justice  defines  a  contract  to  be  a  compact 
between  two  or  more  parties.  The  principles  laitl  doNMi  in  that 
case  are,  that  the  Constitution  of  the  United  States  embraces  all 
contracts,  executed  or  executory,  whether  between  individuals,  or 
between  a  state  and  individuals;  and  that  a  state  has  no  more 
power  to  impair  an  obligation  into  which  she  herself  has  entered, 
than  she  can  the  contracts  of  individuals.  Kentucky,  therefore, 
being  a  party  to  the  compact  which  guarantied  to  claimants  of 
land  lying  in  that  state,  under  titles  derived  from  Virginia,  their 
rights,  as  they  existed  under  the  laws  of  Virginia,  was  incompetent 
to  violate  that  contract,  by  passing  any  law  which  rendered  those 
rights  less  valid  and  secure.  .  .  . 

Johnson,  J.  .  .  .  As  the  language  of  the  first  question  is  suffi- 
ciently general  to  embrace  all  questions  that  may  arise,  either  under 
the  State  or  United  States  Constitution,  much  of  the  argument 
before  this  court  turned  upon  the  inquiry,  whether  the  rights  of  the 
parties  were  afTected  by  that  article  of  the  United  States  Constitu- 
tion which  makes  provision  against  the  violation  of  contracts  ? 
The  general  question  I  shall  decline  passing  an  opinion  upon.  .  .  . 
When  the  people  of  Kentucky  declared,  that  "  the  compact  with 
the  State  of  Virginia,  subject  to  such  alterations  as  may  be  made 
therein,  agreeably  to  the  mode  prescribed  by  the  said  compact, 
shall  be  considered  as  part  of  this  Constitution,"  they  enacted  it  as 
a  law  for  themselves,  in  all  those  parts  in  which  it  was  previously 
obligatory  on  them  as  a  contract;  and  made  it  a  fundamental  law, 
one  which  could  only  be  repealed  in  the  mode  prescribed  for  alter- 
ing that  Constitution.  .  .  . 

I  therefore  consider  the  article  of  the  compact  which  has  relation 
to  this  question,  as  operating  on  the  rights  and  interests  of  the  par- 
ties, with  the  force  of  a  fundamental  law  of  the  state;  and,  cer- 
tainly, it  can,  then,  need  no  support  from  viewing  it  as  a  contract, 
unless  it  be,  that  the  constitution  may  be  repealed  by  one  of  the 
parties,  but  the  contract  cannot.  While  the  constitution  continues 
unrepealed,  it  is  putting  a  fifth  wheel  to  the  carriage  to  invoke  the 
contract  into  this  cause.  It  can  only  eventuate  in  crowding  our 
dockets  with  appeals  from  the  state  courts. 


OGDEN    V.    SAUNDERS.  297 

I  consider,  therefore,  the  following  extract  from  the  compact,  as 
an  enacted  law  of  Kentucky:  "  That  all  private  rights  and  inter- 
ests of  lands  within  (Kentucky),  derived  from  the  laws  of  Virginia 
prior  to  (their)  separation,  shall  remain  valid  and  secure  under  the 
laws  of  the  proposed  state,  and  shall  be  determined  by  the  laws 
{existing  in  Virginia  at  the  time  of  the  separation) . ' '  The  alterations 
here  made  in  the  phraseology,  are  such  as  necessarily  result  from 
the  adaptation  of  it  to  a  legislative  form.  The  occupying  claimant 
laws,  therefore,  must  conform  to  this  constitutional  pro\'ision,  or  be 
void;  for  a  legislature,  constituted  under  that  constitution,  can 
exercise  no  powers  inconsistent  ^^^th  the  instrument  which  created 
it.  .  .  . 

Certificate  .  .  .  that  the  act  .  .  .  of  1797  .  .  .  was  repugnant 
to  the  Constitution  of  the  United  States,  but  .  .  .  was  repealed  by  the 
act  of  .  .  .  1812;  .  .  .  and  that  the  act  last  mentioned  is  also  repug- 
nant to  ike  Constitution  of  the  United  States.  .  .  . 


OGDEN  V.   SAUNDERS. 

Supreme  Court  of  the  United  States.     1827. 

[12  Wheaton,  213.] ' 

Error  to  the  District  Court  of  the  United  States  for  the  District 
of  Louisiana. 

Assumpsit  was  brought  by  Saunders,  a  citizen  of  Kentucky, 
against  Ogden,  a  citizen  of  Louisiana,  on  bills  of  exchange  dra^^-n  in 
Kentucky,  Sept.  30,  1806,  by  J.  Jordan,  and  accepted  by  Ogden  in 
New  York,  of  which  state  Ogden  was  at  that  time  a  citizen  and 
resident.  Ogden  pleaded  among  other  things  a  certificate  of  dis- 
charge under  the  New  York  statute  of  Apr.  3,  1801,  for  the  relief 
of  insolvent  debtors.^  The  discharge  was  obtained  in  New  York 
in  1808,  and  apparentlj-  it  ^yas  in  1810  that  Odgen  removed  from 
New  York  to  Louisiana.     The  jury  found  the  facts  in  a  special 

'  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 
^  The  statute  may  be  found  in  Revised  Laws  of  New  York,  1802  ed.,  428 
or  in  5  Laws  of  New  York,  1887  ed.,  316.  —  Ed. 


298  THE  CONTRACT  CLAUSE. 

verdict,  whereupon  tlie  court  rendered  judgment  for  the  plaintiff 
below,  and  this  writ  of  error  was  taken. 

The  question  as  to  the  repugnancy  of  the  statute  to  the  Constitu- 
tion of  the  United  States  was  argued  at  February  term,  1824,  by 
Clay,  D.  B.  Ogden,  and  Haines,  for  validity,  and  by  Webster  and 
Wheaton,  contra;  and  the  cause  was  continued  for  advisement  imtil 
January  term,  1827,  when  it  was  argued,  Feb.  19  to  22,  in  connec- 
tion with  other  causes  involving  the  question  of  the  state  bankrupt 
or  insolvent  laws,  by  Webster  and  Wheaton,  against  validity,  and 
by  Wirt,  Attorney  General,  E.  Livingston,  D.  B.  Ogden,  Jones,  and 
Sampson,  contra. 

Feb.  19,  1827.     The  learned  judges  delivered  their  opinions  as 

follows :  — 

Washington,  J.  The  first  and  most  important  point  to  be 
decided  in  this  cause  turns  essentially  upon  the  question,  whether 
the  obligation  of  a  contract  is  impaired  by  a  state  bankrupt  or  in- 
solvent law,  which  discharges  the  person  and  the  future  acquisitions 
of  the  debtor  from  his  liability  under  a  contract  entered  into  in  that 
state  after  the  passage  of  the  act. 

This  question  has  never  before  been  distinctly  presented  to  the 
consideration  of  this  court,  and  decided,  although  it  has  been 
supposed  by  the  judges  of  a  highly  respectable  state  court,  that  it 
was  decided  in  the  case  of  McMillan  v.  McNeill  (4  Wheat.  Rep. 

209).   .   .   . 

What  is  it,  then,  which  constitutes  the  obligation  of  a  contract  ? 
The  answer  is  given  by  the  Chief  Justice,  in  the  case  of  Sturges  v. 
Cromiinshield,  to  which  I  readily  assent  now,  as  I  did  then;  it  is 
the  law  which  bmds  the  parties  to  perform  their  agreement.  The 
law,  then,  which  has  this  bmding  obligation,  must  govern  and  con- 
trol the  contract,  in  every  shape  in  which  it  is  intended  to  bear  upon 
it,  whether  it  affects  its  vahdity,  construction,  or  discharge. 

But  the  question,  which  law  is  referred  to  in  the  above  definition, 
still  remains  to  be  solved.  It  cannot,  for  a  moment,  be  conceded, 
that  the  mere  moral  law  is  intended,  since  the  obligation  which 
that  imposes  is  altogether  of  the  imperfect  kind,  which  the  parties 
to  it  are  free  to  obey,  or  not,  as  they  please.  .  .  . 

It  is,  then,  the  municipal  law  of  the  state,  whether  that  be  written 
or  unwritten,  which  is  emphatically  the  law  of  the  contract  made 
within  the  state,  and  must  govern  it  throughout,  wherever  its  per- 
formance is  sought  to  be  enforced. 

It  forms,  jn  my  humble  opinion,  a  part  of  the  contract,  and 
travels  with  it,  wherever  the  parties  to  it  may  be  found.  .  .  . 


OGDEN   V.    SAUNDERS. 


299 


My  opinion  is,  that  the  judgment  of  the  court  below  ought  to  be 
reversed  and  judgment  given  for  the  plaintiff  in  error. 

Johnson,  J.  .  .  .  We  are  not  in  possession  of  the  grounds  of  the 
decision  below;  and  it  has  been  argued  here,  as  having  been  given 
upon  the  general  nullity  of  the  discharge,  on  the  ground  of  its  un- 
constitutionality. But,  it  is  obvious,  that  it  might  also  have  pro- 
ceeded upon  the  ground  of  its  nullity  as  to  citizens  of  other  states, 
who  have  never,  by  any  act  of  their  own,  submitted  themselves  to 
the  lex  fori  of  the  state  that  gives  the  discharge  —  considering  the 
right  given  by  the  Constitution  to  go  into  the  courts  of  the  United 
States  upon  any  contracts,  whatever  be  their  lex  loci,  as  modifymg 
and  limiting  the  general  power  which  states  are  acknowledged  to 
possess  over  contracts  formed  under  control  of  their  peculiar  laws. 

This  question,  however,  has  not  been  argued,  and  must  not  now 
be  considered  as  disposed  of  by  this  decision. 

The  abstract  question  of  the  general  power  of  the  states  to  pass 
laws  for  the  relief  of  msolvent  debtors,  will  be  alone  considered. 
And  here,  in  order  to  ascertain  with  precision  what  we  are  to  decide, 
it  is  first  proper  to  consider  what  this  court  has  already  decided  on 
this  subj  ect.  And  this  brings  under  review  the  two  cases  of  Sturges 
V.  Crownmshield,  and  McMillan  v.  McNeill,  adjudged  in  the  year 
1819,  and  contained  in  the  4th  vol.  of  the  Reports  If  the  marginal 
note  to  the  report,  or  summary  of  the  effect  of  the  case  of  McMillan 
V.  ]\IcXeill,  presented  a  correct  view  of  the  report  of  that  decision, 
it  is  obvious  that  there  would  remain  very  little,  if  anything,  for 
this  court  to  decide.  But  by  comparing  the  note  of  the  reporter 
with  the  facts  of  the  case,  it  will  be  found  that  there  is  a  generality 
of  expression  admitted  into  the  former,  which  the  case  itself  does 
not  justify.  The  principle  recognized  and  affirmed  in  McMillan  v. 
McNeill,  is  one  of  universal  law,  and  so  obvious  and  mcontestable 
that  it  need  be  only  understood  to  be  assented  to.  It  is  nothing 
more  than  this,  "  that  insolvent  laws  have  no  extra-territorial 
operation  upon  the  contracts  of  other  states;  that  the  pruiciple  is 
applicable  as  well  to  the  discharges  given  under  the  laws  of  the 
states,  as  of  foreign  countries;  and  that  the  anterior  or  posterior 
character  of  the  law  under  which  the  discharge  is  given,  ^\ath  refer- 
ence to  the  date  of  the  contract,  makes  no  discrimination  in  the 
application  of  that  principle." 

The  report  of  the  case  of  Sturges  v.  Crowninshield  needs  also 
some  explanation.  The  court  was,  in  that  case,  greatly  divided  in 
their  views  of  the  doctrine,  and  the  judgment  partakes  as  much  of 
a  compromise,  as  of  a  legal  adjudication.     The  minority  thought  it 


300  THE  CONTRACT  CLAUSE. 

better  to  yield  something  than  risk  the  whole.  And,  although 
their  course  of  reasoning  led  them  to  the  general  maintenance  of 
the  state  power  over  the  subject,  controlled  and  limited  alone  by  the 
oath  administered  to  all  their  puljlic  functionaries  to  maintain  the 
Constitution  of  the  United  States,  yet,  as  denying  the  power  to  act 
upon  anterior  contracts  could  do  no  harm,  but,  in  fact,  imposed  a 
restriction  conceived  in  the  true  spirit  of  the  Constitution,  they 
were  satisfied  to  acquiesce  in  it,  provided  the  decision  were  so 
guarded  as  to  secure  the  power  over  posterior  contracts,  as  well 
from  the  positive  terms  of  the  adjudication,  as  from  inferences 
deducible  from  the  reasoning  of  the  court. 

The  case  of  St  urges  v.  Cro\vninshield,then,  must,  in  its  authority, 
be  limited  to  the  terms  of  the  certificate,  and  that  certificate 
affirms  two  propositions. 

1.  That  a  state  has  authority  to  pass  a  bankrupt  law,  provided 
such  law  does  not  impair  the  obligation  of  contracts  within  the 
meanuig  of  the  Constitution,  and  provided  there  be  no  act  of  Con- 
gress in  force  to  establish  an  uniform  system  of  bankruptcy,  con- 
flicting with  such  law. 

2.  That  a  law  of  this  description,  acting  upon  prior  contracts, 
is  a  law  impairing  the  obligation  of  contracts  within  the  meaning 
of  the  Constitution. 

Whatever  mferences  or  whatever  doctrines  the  opinion  of  the 
court  in  that  case  may  seem  to  support,  the  concludhig  words  of 
that  opinion  were  intended  to  control  and  to  confine  the  authority 
of  the  adjudication  to  the  limits  of  the  certificate.  .  .  . 

Right  and  obligation  are  considered  by  all  ethical  writers  as 
correlative  terms :  Whatever  I  by  my  contract  give  another  a  right 
to  require  of  me,  I  by  that  act  lay  myself  under  an  obUgation  to 
yield  or  bestow.  The  obligation  of  every  contract  will  then  consist 
of  that  right  or  power  over  my  will  or  actions,  which  I,  by  my  con- 
tract, confer  on  another.  And  that  right  and  power  will  be  found 
to  be  measured  neither  by  moral  law  alone,  nor  universal  law  alone, 
nor  by  the  laws  of  society  alone,  but  by  a  combination  of  the  three, 
—  an  operation  in  which  the  moral  law  is  explained  and  applied  by 
the  law  of  nature,  and  both  modified  and  adapted  to  the  exigencies 
of  society  by  positive  law.  The  Constitution  was  framed  for  so- 
ciety, and  an  advanced  state  of  society,  in  v/hich  I  will  undertake 
to  say  that  all  the  contracts  of  men  receive  a  relative,  and  not  a 
positive  interpretation:  for  the  rights  of  all  must  be  held  and  en- 
joyed in  subserviency  to  the  good  of  the  whole.  .  .  . 


OGDEN   V.    SAUNDERS.  301 

When  that  state  of  things  has  arrived  in  which  the  community- 
has  fairly  and  fully  discharged  its  duties  to  the  creditor,  and  in 
which  pursuing  the  debtor  any  longer  would  destroy  the  one  with- 
out benefiting  the  other,  must  always  be  a  question  to  be  deter- 
mined by  the  common  guardian  of  the  rights  of  both;  and  in  this 
originates  the  power  of  governments  in  favor  of  insolvents.  .  .  . 

If  it  be  objected  to  these  vieAvs  of  the  subject,  that  they  are  as 
applicable  to  contracts  prior  to  the  law,  as  to  those  posterior  to  it, 
and,  therefore,  inconsistent  with  the  decision  in  the  case  of  Sturges 
V.  CroA\Tiinshield,  my  reply  is  that  I  think  this  no  objection  to  its 
correctness.  I  entertained  this  opinion  then,  and  have  seen  no 
reason  to  doubt  it  since.  But  if  applicable  to  the  case  of  prior 
debts,  niulto  fortiori  will  it  be  so  to  those  contracted  subsequent  to 
such  a  law;  the  posterior  date  of  the  contract  removes  all  doubt  of 
its  ])eing  in  the  fair  and  unexceptionable  administration  of  justice 
that  the  discharge  is  awarded. 

I  must  not  be  understood  here  as  reasoning  upon  the  assumption 
that  the  remedy  is  grafted  into  the  contract.  .  .  . 

Societies  exercise  a  positive  control  as  well  over  the  inception, 
construction,  and  fulfilment  of  contracts  as  over  the  form  and 
measure  of  the  remedy  to  enforce  them.  ...  I  hold  it  impossible 
to  maintain  the  constitutionality  of  an  act  of  limitation,  if  the  modi- 
fication of  the  remedy  against  debtors,  imphed  in  the  discharge  of 
insolvents,  is  unconstitutional.  .  .  . 

It  is  in  vain  to  say  that  acts  of  limitation  appertain  to  the  remedy 
only;  both  descriptions  of  laws  appertain  to  the  remedy.  .  .  . 

The  right,  then,  of  the  creditor  to  the  aid  of  the  public  arm  for 
the  recovery  of  contracts  is  not  absolute  and  unlimited,  but  may 
be  modified  by  the  necessities  or  pohcy  of  societies.  And  this, 
together  with  the  contract  itself,  must  be  taken  by  the  individual, 
subject  to  such  restrictions  and  conditions  as  are  imposed  by  the 
laws  of  the  country.  .  .  . 

Thompson,  J.  .  .  .  Any  contract  not  sanctioned  by  existing 
laws  creates  no  civil  obligation;  and  any  contract  discharged  in  the 
mode  and  manner  provided  by  the  existing  law  where  it  was  made 
cannot,  upon  any  just  principles  of  reasoning,  be  said  to  be  im- 
paired by  such  law.  .  .  . 

Trimble,  J.  .  .  .  So  far  as  relates  to  private  contracts  between 
individual  and  individual,  it  is  the  civil  obUgation  of  contracts  — 
that  obligation  which  is  recognized  by,  and  results  from,  the  law  of 
the  state  in  which  the  contract  is  made  —  which  is  within  the 
meaning  of  the  Constitution.  ... 


302  THE  CONTRACT  CLAUSE. 

Marshall,  C.  J.  .  .  .  Three  judges,  Mr.  Justice  Duvall,  Mr. 
Justice  Story,  and  myself,  do  not  concur  in  the  judgment  which 
has  been  pronounced.  .  .  . 

What  is  the  original  obligation  of  a  contract,  made  after  the 
passage  of  such  an  act  as  the  insolvent  law  of  New  York  ?  Is  it 
unconditional,  to  perform  the  very  thing  stipulated,  or  is  the  con- 
dition implied,  that,  in  the  event  of  insolvency,  the  contract  shall 
be  satisfied  by  the  surrender  of  property  ?  .  .  . 

If  one  law  enters  into  all  subsequent  contracts,  so  does  every 
other  law  which  relates  to  the  subject.  A  legislative  act,  then, 
declaring  that  all  contracts  should  be  subject  to  legislative  control, 
and  should  be  discharged  as  the  legislature  might  prescribe,  would 
become  a  component  part  of  every  contract,  and  be  one  of  its  con- 
ditions. .  .  . 

The  obligation  must  exist,  before  it  can  be  impaired;  and  a  pro- 
hibition to  impair  it,  when  made,  does  not  imply  an  inal)ility  to 
prescribe  those  circumstances  which  shall  create  its  obligation. 
The  statutes  of  frauds  .  .  .  prescribe  regulations  which  must  pre- 
cede the  obHgation  of  the  contract,  and,  consequently,  cannot 
impair  that  obligation.  .  .  . 

The  acts  against  usury  are  of  the  same  character.  They  declare 
the  contract  to  be  void  in  the  beginning.  .  .  . 

Acts  of  limitation  approach  more  nearly  to  the  subject  of  con- 
sideration, but  are  not  identified  with  it.  .  .  .  But  .  .  .  the  two 
laws  stand  upon  distinct  principles.  .  .  .  These  statutes  relate 
only  to  the  remedies  which  are  furnished  in  the  courts.  .  .  .  They 
do  not  purport  to  dispense  with  the  performance  of  a  contract,  but 
proceed  on  the  presumption  that  a  certain  length  of  time,  unex- 
plained by  circumstances,  is  reasonable  evidence  of  a  per- 
formance. .  .  . 

We  think  that  obUgation  and  remedy  are  distinguishable  from 
each  other.  That  the  first  is  created  by  the  act  of  the  parties,  the 
last  is  afforded  by  government.  The  words  of  the  restriction  we 
have  been  considering,  countenance,  we  think,  this  idea.  No  state 
shall  "  pass  any  law  impairmg  the  obhgation  of  contracts."  These 
words  seem  to  us  to  import,  that  the  obHgation  is  intrinsic,  that  it 
is  created  by  the  contract  itself,  not  that  it  is  dependent  on  the  laws 
made  to  enforce  it.  When  we  advert  to  the  course  of  reading 
generally  pursued  by  American  statesmen  in  early  life,  we  must 
suppose  that  the  framers  of  our  Constitution  were  intimately 
acquainted  with  the  writings  of  those  wise  and  learned  men,  whose 
treatises  on  the  laws  of  nature  and  nations  have  guided  public 


OGDEN    V.    SAUNDERS.  303 

opinion  on  the  subjects  of  obligation  and  contract.  If  we  turn  to 
those  treatises,  we  find  them  to  concur  in  the  declaration,  that  con- 
tracts possess  an  original  intrinsic  obligation,  derived  from  the  acts 
of  free  agents,  and  not  given  by  government.  .  .  . 

Mar.  6,  1827.  Judgment  having  been  entered  in  favor  of  the 
vahdity  of  a  certificate  of  discharge  under  the  state  laws  in  those 
cases  (argued  in  connexion  with  Ogden  v.  Saunders),  where  the 
contract  was  made  between  citizens  of  the  state  under  whose  law 
the  discharge  was  obtained,  and  in  whose  courts  the  certificate  was 
pleaded,  the  cause  was  further  argued  by  the  same  counsel,  upon 
the  points  reserved,  as  to  the  effect  of  such  a  discharge  in  respect  to 
a  contract  made  with  a  citizen  of  another  state,  and  where  the  cer- 
tificate was  pleaded  in  the  courts  of  another  state,  or  of  the  United 
States.  .  .  . 

Mar.  13.  Johnson,  J.  I  am  instructed  by  the  majority  of  the 
court  finally  to  dispose  of  this  cause.  The  present  majority  is  not 
the  same  which  determined  the  general  question  on  the  constitu- 
tionality of  state  insolvent  laws,  with  reference  to  the  violation  of 
the  obligation  of  contracts.  I  now  stand  united  with  the  mmority 
on  the  former  question,  and,  therefore,  feel  it  due  to  myself  and  the 
community  to  maintain  my  consistency. 

The  question  now  to  be  considered  is,  whether  a  discharge  of  a 
debtor  under  a  state  insolvent  law  would  be  valid  against  a  creditor 
or  citizen  of  another  state,  who  has  never  voluntarily  subjected 
himself  to  the  state  laws,  otherwise  than  by  the  origin  of  his  con- 
tract. .  .  . 

The  question  is  one  partly  international,  partly  constitu- 
tional. .  .  . 

The  judgment  below  will  .  .  .  be  affirmed. 

And  the  purport  of  this  adjudication,  as  I  understand  it,  is,  that 
as  between  citizens  of  the  same  state,  a  discharge  of  a  bankrupt  by 
the  laws  of  that  state  is  valid  as  it  affects  posterior  contracts;  that 
as  against  creditors,  citizens  of  other  states,  it  is  invalid  as  to  all 
contracts. 

The  propositions  which  I  have  endeavored  to  maintain  m  the 
opinion  which  I  have  delivered  are  these : 

1st.  That  the  power  given  to  the  United  States  to  pass  bankrupt 
laws  is  not  exclusive. 

2d.  That  the  fair  and  orduiary  exercise  of  that  power  by  the 
states  does  not  necessarily  involve  a  violation  of  the  obligation  of 
contracts,  multo  fortiori  of  posterior  contracts. 


304  THE  CONTRACT  CLAUSE. 

3d.  But  when,  in  the  exercise  of  that  power,  the  states  pass  be- 
yond their  oavti  Hmits,  and  the  riglits  of  their  own  citizens,  and  act 
upon  the  rights  of  citizens  of  other  states,  there  arises  a  conflict  of 
sovereign  power,  and  a  colhsion  with  the  judicial  powers  granted 
to  the  United  States,  which  renders  the  exercise  of  such  a  power  in- 
compatible with  the  rights  of  other  states,  and  with  the  Constitu- 
tion of  the  United  States. 

Mr.  Justice  Washington,  Mr.  Justice  Thompson,  and  Mr. 
Justice  Trimble  dissented. 

Mr.  Chief  Justice  Marshall,  Mr.  Justice  Ditv^all,  and  Mr. 
Justice  Story  assented  to  the  judgment,  which  was  entered  for  the 

defendant  in  error. 

Judgment  affirmed} 


SATTERLEE  v.   MATTHEWSON. 
Supreme  Court  of  the  United  States.     1829. 

[2  Peters,  380.]  ^ 

Error  to  the  Supreme  Court  of  Pennsylvania. 

In  an  action  of  ejectment  in  the  Court  of  Common  Pleas  of  Brad- 
ford County,  Pennsylvania,  Elizabeth  Matthewson  claimed  land 
of  which  Satterlee  had  been  tenant  under  an  agreement  with  her 
testator,  Satterlee  set  up  a  Pennsylvania  title  obtauied  by  him 
after  the  beginning  of  the  tenancy,  at  which  time  the  right  of 
the  plamtiff's  testator  had  been  based  upon  a  title  from  Connecti- 
cut. At  the  first  trial,  the  jury  were  charged  that  Satterlee,  if  still 
in  possession  by  reason  of  the  agreement,  could  not  set  up  an  ad- 
verse title.  Verdict  and  judgment  were  given  against  him. 
On  writ  of  error,  the  Supreme  Court  of  Pennsylvania  decided  "that 
the  relation  between  landlord  and  tenant  could  not  exist  between 
persons  holding  under  a  Connecticut  title,"  and  awarded  a  new 
trial  (13  S.  &  R.  133).  Immediately  after  this  decision  the  legis- 
lature, m  1826,  enacted  "  that  the  relation  of  landlord  and  tenant 
should  exist,  and  be  held  as  fully  and  effectually  between  Connecti- 
cut settlers  and  Pennsylvania  claimants,  as  between  other  settlers 
of  the  commonwealth."     On  the  second  trial  the  judge,  after  stat- 

1  See  Baldwin  v.  Hale,  1  Wall.  223,  230-231  (1863).  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


SATTERLEE    V.    MATTHEWSON.  305 

ing  the  statute,  charged  the  jury  thus:  "  It  is  a  general  prmciple  of 
law,  founded  on  wise  policy,  that  the  tenant  shall  not  controvert 
the  title  of  his  landlord,  and  prevent  the  recovery  of  his  possession, 
by  showing  that  the  title  of  the  landlord  is  defective.  Among  the 
exceptions  to  this  general  rule,  the  Supreme  Court  of  Pennsylvania 
have  decided  that  when  the  landlord  claimed  (as  the  plaintiff 
claimed  on  the  former  trial  of  this  cause)  under  a  Connecticut  title, 
the  case  should  form  one  of  the  excepted  cases.  The  legislature 
have  thought  proper  to  enact  the  above-cited  law,  and  by  it  we  are 
bound.  And  if  the  plaintiff  in  all  other  respects  should  be  found 
entitled  to  a  recovery,  the  mere  claimmg  through  a  Connecticut 
title  would  not  now  deprive  her  of  her  right  to  a  recovery."  Satter- 
lee  excepted  to  the  charge,  and  verdict  and  judgment  were  ren- 
dered against  hun.  On  writ  of  error  the  Supreme  Court  of 
Pennsylvania  affirmed  the  judgment  (16  S.  &  R.  169). ^  There- 
upon this  writ  of  error  was  obtained. 

Ptice  and  Sergeant,  for  plaintiff  in  error;  and  Sutherland  and 
Peters,  contra. 

Washington,  J.,  delivered  the  opinion  of  the  court.  ...  Is 
the  act  which  is  objected  to  repugnant  to  any  provision  of  the  Con- 
stitution of  the  United  States  ?  .  .  . 

We  are  then  to  inquire  whether  the  obligation  of  the  contract  be- 
tween Satterlee  and  Matthewson  was  impaired  by  this  statute.  .  .  . 
It  is  that  contract  which  the  act  declared  to  be  valid,  in  opposition 
to  the  decision  of  the  Supreme  Court ;  and  admitting  the  correct- 
ness of  that  decision,  it  is  not  easy  to  perceive  how  a  law  which 
gives  validity  to  a  void  contract,  can  be  said  to  impair  the  obliga- 
tion of  that  contract.  Should  a  statute  declare,  contrary  to  the 
general  principles  of  law,  that  contracts  founded  upon  an  illegal  or 
immoral  consideration,  whether  in  existence  at  the  time  of  passing 
the  statute,  or  which  might  hereafter  be  entered  into,  should  nev- 
ertheless be  valid  and  binding  upon  the  parties;  all  would  admit 
the  retrospective  character  of  such  an  enactment,  and  that  the 
effect  of  it  was  to  create  a  contract  between  parties  where  none 
had  previously  existed.  But  it  surely  cannot  be  contended,  that 
to  create  a  contract,  and  to  destroy  or  impair  one,  mean  the  same 
thing.  .  .  . 

The  objection  however  which  was  most  pressed  upon  the  court, 
and  relied  upon  by  the  counsel  for  the  plaintiff  in  error,  was,  that 
the  effect  of  this  act  was  to  divest  rights  which  were  vested  by  law 

^  An  account  of  the  dispute  between  Connecticut  and  Pennsylvania  may  be 
found  at  the  place  cited.  —  Ed. 


30G  THE  CONTRACT  CLAUSE. 

in  Satterlee.  There  is  certainly  no  part  of  the  Constitution  of  the 
United  States  which  appHes  to  a  state  law  of  this  description;  nor 
are  we  aware  of  any  decision  of  this,  or  of  any  circuit  court,  which 
has  condemned  such  a  law  upon  this  ground ;  provided  its  effect  be 
not  to  impair  the  obligation  of  a  contract;  and  it  has  been  shown, 
that  the  act  in  question  has  no  such  effect  upon  either  of  the  con- 
tracts which  have  been  before  mentioned. 

In  the  case  of  Fletcher  v.  Peck,  it  was  stated  by  the  chief  justice, 
that  it  might  well  be  doubted,  whether  the  nature  of  society  and  of 
government  do  not  prescribe  some  limits  to  the  legislative  power; 
and  he  asks,  "  if  any  be  prescribed,  where  are  they  to  be  found,  if 
the  property  of  an  indivitlual,  fairly  and  honestly  acquired,  may  be 
seized  without  compensation  ?  "  It  is  nowhere  mtimated  in  that 
opinion,  that  a  state  statute,  which  divests  a  vested  right,  is  repug- 
nant to  the  Constitution  of  the  United  States;  and  the  case  in 
which  that  opinion  was  pronounced,  was  removed  into  this  court 
by  writ  of  error,  not  from  the  supreme  court  of  a  state,  but  from 
a  circuit  court. 

The  strong  expressions  of  the  court  upon  this  point,  in  the  cases 
of  Vanhome's  lessee  v.  Dorance,  and  The  Society  for  the  Propa- 
gation of  the  Gospel  v.  Wheeler,  were  founded  expressly  on  the 
constitution  of  the  respective  states  in  which  those  cases  were 
tried. 

We  do  not  mean  in  any  respect  to  impugn  the  correctness  of  the 
sentiments  expressed  in  those  cases,  or  to  question  the  correctness 
of  a  circuit  court,  sittmg  to  administer  the  laws  of  a  state,  in  giving 
to  the  constitution  of  that  state  a  paramount  authority  over  a  leg- 
islative act  passed  in  violation  of  it.  We  intend  to  decide  no  more 
than  that  the  statute  objected  to  m  this  case  is  not  repugnant  to  the 
Constitution  of  the  United  States,  and  that  unless  it  be  so,  this 
court  has  no  authority,  under  the  25th  section  of  the  judiciary  act, 
to  re-examme  and  to  reverse  the  judgment  of  the  Supreme  Court 
of  Pennsylvania  in  the  present  case. 

That  judgment  therefore  must  be  affirmed  with  costs.^ 

Johnson,  J.  I  assent  to  the  decision  .  .  .  but  .  .  .  record  my 
disapprobation  of  the  ground.  ...  To  give  efficacy  to  a  void 
contract  is  not,  it  is  true,  violating  a  contract,  but  it  is  doing  in- 
finitely worse.  .  .  .  There  is  another,  and  a  safe  and  obvious 
ground,  upon  which  the  decision  of  the  Pennsylvania  Court  may  be 
sustained. 

»  See  Watson  v.  Mercer,  8  Pet.  88  (1834).  —  Ed. 


SATTERLEE    V.    MATTHEWSON. 


307 


The  fallacy  of  the  argument  of  the  plaintiff  in  error  consists  in 
this,  that  he  would  give  to  the  decision  of  a  court,  on  a  point  arismg 
in  the  progress  of  his  cause,  the  binding  effect  of  a  statute  or  a 
judgment;  that  he  would  in  fact  restrict  the  same  court  from  revis- 
ing and  overruling  a  decision  which  it  has  once  rendered,  and  from 
entering  a  different  judgment  from  that  which  would  have  been 
rendered  in  the  same  court,  had  the  first  decision  been  adhered  to. 
It  is  impossible,  in  examining  the  cause,  not  to  perceive  that  the 
statute  complained  of  was  no  more  than  declarative  of  the  law  on  a 
pomt  on  which  the  decisions  of  the  state  courts  had  fluctuated,  and 
which  never  was  finally  settled  until  the  decision  took  place  on 
which  this  writ  of  error  is  sued  out. 

The  decision  on  which  he  relies,  to  maintain  the  invalidity  of  the 
Connecticut  lease,  was  rendered  on  a  motion  for  a  new  trial ;  all  the 
right  it  conferred  was  to  have  that  new  trial;  and  it  even  appears 
that  before  that  new  trial  took  place,  the  same  court  had  decided  a 
cause,  which  in  effect  overruled  the  decision  on  which  he  now  rests; 
so  that  when  this  act  was  passed,  he  could  not  even  lay  claim  to 
that  imperfect  state  of  right,  which  uniform  decisions  are  supposed 
to  confer.  The  latest  decision  in  fact,  which  ought  to  be  the  pre- 
cedent, if  any,  was  against  his  right. 

It  is  perfectly  clear,  when  we  examine  the  reasoning  of  the  judges 
on  rendering  the  judgment  now  under  review,  that  they  consider 
the  law  as  unsettled,  or  rather,  as  settled  against  the  plaintiff  here 
at  the  time  the  act  was  passed ;  and  if  so,  what  right  of  his  has  been 
violated  ?  The  act  does  no  more  than  what  the  courts  of  justice 
had  done,  and  would  do  without  the  aid  of  the  law:  pronounce  the 
decision  on  which  he  relies  as  erroneous  in  principle,  and  not  bind- 
ing in  precedent. 

The  decision  of  the  state  court  is  supported  under  this  view  of  the 
subject,  wdthout  resortmg  to  the  portentous  doctrine  (for  I  must 
call  it  portentous),  that  a  state  may  declare  a  void  deed  to  be  a 
valid  deed,  as  affectmg  individual  litigants  on  a  point  of  right, 
without  violating  the  Constitution  of  the  United  States.  .  .  . 


308  THE  CONTRACT  CLAUSE. 

THE  PROVIDENCE  BANK   v.   BILLINGS. 

Supreme  Court  of  the  United  States.     1830. 

[4  Pe/ers,  514.)' 

Error  to  the  Supreme  Court  of  Rhode  Island. 

Whipple,  for  plaintiffs  in  error;  and  Hazzard  and  Jones,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  This  is  a 
writ  of  error  to  a  judgment  rendered  in  the  highest  court  for  the 
State  of  Rhode  Island,  in  an  action  of  trespass  brought  by  the  plain- 
tiff in  error  against  the  defendant. 

In  November,  1791,  the  legislature  of  Rhode  Island  granted  a 
charter  of  incorporation  to  certain  individuals,  who  had  associated 
themselves  together  for  the  purjjose  of  forming  a  bankmg  company. 
They  are  incorporated  by  the  name  of  the  "  President,  Directors, 
and  Company  of  the  Providence  Bank  ";  and  have  the  ordmary 
powers  which  are  supposed  to  be  necessary  for  the  usual  objects  of 
such  associations. 

In  1822  the  legislature  of  Rhode  Island  passed  "  an  act  imposing 
a  duty  on  licensed  persons  and  others,  and  bodies  corjwrate  within 
the  state  ";  in  which,  among  other  things,  it  is  enacted  that  there 
shall  be  paid,  for  the  use  of  the  state,  by  each  and  every  bank 
within  the  state,  except  the  Bank  of  the  United  States,  the  sum  of 
fifty  cents  on  each  and  every  thousand  dollars  of  the  capital  stock 
actually  paid  in.  This  tax  was  afterwards  augmented  to  one 
dollar  and  twenty-five  cents. 

The  Providence  Bank,  having  determined  to  resist  the  payment 
of  this  tax,  brought  an  action  of  trespass  against  the  officers  by 
whom  a  warrant  of  distress  was  issued  against  and  served  upon  the 
property  of  the  bank,  in  pursuance  of  the  law.  The  defendants 
justify  the  taking  set  out  in  the  declaration  under  the  act  of  as- 
sembly hnposing  the  tax;  to  which  plea  the  plaintiffs  demur,  and 
assign  for  cause  of  demurrer  that  the  act  is  repugnant  to  the  Con- 
stitution of  the  United  States,  inasmuch  as  it  impairs  the  obligation 
of  the  contract  created  by  their  charter  of  incorporation.  Judg- 
ment was  given  by  the  court  of  common  pleas  in  favor  of  the  de- 
fendants; which  judgment  was,  on  appeal,  confirmed  by  the 
supreme  judicial  court  of  the  state:  that  judgment  has  been  brought 
before  this  court  by  a  writ  of  error. 

It  has  been  settled  that  a  contract  entered  into  between  a  state 
and  an  individual,  is  as  fully  protected  by  the  tenth  section  of  the 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


PROVIDENCE    BANK    V.    BILLINGS.  309 

first  article  of  the  Constitution,  as  a  contract  between  two  individ- 
uals; and  it  is  not  denied  that  a  charter  incorporating  a  bank  is 
a  contract.     Is  this  contract  impaired  by  taxing  the  banks  of  the 

state  ? 

This  question  is  to  be  answered  by  the  charter  itself. 
It  contains  no  stipulation  promismg  exemption  from  taxation. 
The  state,  then,  has  made  no  ex-press  contract  which  has  been  im- 
paired by  the  act  of  which  the  plaintiffs  complain.     No  words  have 
been  found  in  the  charter,  which,  in  themselves,  would  justify  the 
opinion  that  the  power  of  taxation  was  in  the  view  of  either  of  the 
parties;   and  that  an  exemption  of  it  was  intended,  though  not 
expressed.     The  plaintiffs  find  great  difficulty  in  showing  that  the 
charter  contains  a  promise,  either  express  or  implied,  not  to  tax  the 
bank.      The  elaborate  and  ingenious  argument  which  has  been 
urged  amounts,  in  substance,  to  this.     The  charter  authorizes  the 
bank  to  employ  its  capital  in  banking  transactions,  for  the  benefit 
of  the  stockholders.     It  binds  the  state  to  permit  these  transactions 
for  this  object.     Any  law  arresting  directly  the  operations  of  the 
bank  woukl  violate  this  obligation,  and  would  come  within  the 
prohibition  of  the  Constitution.     But,  as  that  cannot  be  done  cir- 
cuitously  which  may  not  be  done  directly,  the  charter  restrains  the 
state  from  passing  any  act  which  may  mdirectly  destroy  the  profits 
of  the  bank.     A  power  to  tax  the  bank  may  unquestionably  be 
carried  to  such  an  excess  as  to  take  all  its  profits,  and  still  more  than 
its  profits,  for  the  use  of  the  state;  and  consequently  destroy  the 
institution.     Now,  whatever  may  be  the  rule  of  expediency,  the 
constitutionality  of  a  measure  depends,  not  on  the  degree  of  its 
exercise,  but  on  its  principle.     A  power  therefore  which  may  m 
effect  destroy  the  charter,  is  inconsistent  with  it;  and  is  unphedly 
renounced  by  granting  it.     Such  a  power  cannot  be  exercised  with- 
out impairing  the  obhgation  of  the  contract.     When  pushed  to  its 
extreme  point,  or  exercised  in  moderation,  it  is  the  same  power, 
and  is  hostile  to  the  rights  granted  by  the  charter.     This  is  sub*- 
stantially  the  argument  for  the  bank.     The  plaintiffs  cite  and  rely 
on  several  sentiments  ex-pressed  on  various  occasions  by  this  court, 
in  support  of  these  positions. 

The  claim  of  the  Providence  Bank  is  certainly  of  the  first  im^ 
pression.  The  power  of  taxing  moneyed  corporations  has  been 
frequently  exercised;  and  has  never  before,  so  far  as  is  known, 
been  resisted.  Its  novelty,  however,  furnishes  no  conclusive  argu- 
ment against  it. 


310  THE  CONTRACT  CLAUSE. 

That  the  taxing  power  is  of  vital  importance;  that  it  is  essential 
to  the  existence  of  government;  are  truths  which  it  cannot  be 
necessary  to  reaffirm.  They  are  acknowledged  and  asserted  by  all. 
It  would  seem  that  the  relmquishment  of  such  a  power  is  never  to 
be  assumed.  We  will  not  say  that  a  state  may  not  relinquish  it; 
that  a  consideration  sufficiently  valuable  to  induce  a  partial  release 
of  it  may  not  exist :  but  as  the  whole  community  is  interested  in 
retaining  it  undiminished,  that  commmiity  has  a  right  to  insist 
that  its  abandonment  ought  not  to  be  presumed,  in  a  case  in  which 
the  deliberate  purpose  of  the  state  to  abandon  it  does  not  appear. 

The  plaintiffs  would  give  to  this  charter  the  same  construction  as 
if  it  contained  a  clause  exempting  the  bank  from  taxation  on  its 
stock  in  trade.  But  can  it  be  supposed  that  such  a  clause  would 
not  enlarge  its  privileges  ?  They  contend  that  it  must  be  implied; 
because  the  power  to  tax  may  be  so  wielded  as  to  defeat  the  purpose 
for  which  the  charter  was  granted.  And  may  not  this  be  said  with 
equal  truth  of  other  legislative  powers  ?  Does  it  not  also  apply 
with  equal  force  to  every  incorporated  company  ?  A  company 
may  be  incorporated  for  the  purpose  of  trading  in  goods  as  well  as 
trading  in  money.  If  the  policy  of  the  state  should  lead  to  the 
imposition  of  a  tax  on  unincorporated  companies,  could  those 
which  might  be  incorporated  claim  an  exemption,  in  virtue  of  a 
charter  which  does  not  indicate  such  an  intention  ?  The  time  may 
come  when  a  duty  may  be  imposed  on  manufactures.  Would  an 
incorporated  company  be  exempted  from  this  duty,  as  the  mere 
consequence  of  its  charter  ? 

The  great  object  of  an  incorporation  is  to  bestow  the  character 
and  properties  of  individuality  on  a  collective  and  changing  body 
of  men.  This  capacity  is  always  given  to  such  a  body.  Any 
privileges  which  may  exempt  it  from  the  burthens  common  to 
individuals,  do  not  flow  necessarily  from  the  charter,  but  must 
be  exj)ressed  in  it,  or  they  do  not  exist. 

If  the  power  of  taxation  is  inconsistent  with  the  charter,  because 
it  may  be  so  exercised  as  to  destroy  the  object  for  which  the  charter 
is  given;  it  is  equally  mconsistent  with  every  other  charter,  be- 
cause it  is  equally  capable  of  workhig  the  destruction  of  the  objects 
for  which  every  other  charter  is  given.  If  the  grant  of  a  power  to 
trade  in  money  to  a  given  amomit,  impHes  an  exemption  of  the 
stock  in  trade  from  taxation,  because  the  tax  may  absorb  all  the 
profits;  then  the  grant  of  any  other  thing  imphes  the  same  exemp- 
tion; for  that  thing  maj^  be  taxed  to  an  extent  which  will  render  it 
totally  unprofitable  to  the  grantee.      Land,  for  example,  has,  in 


PROVIDENCE    B.'iJJK   V.    BILLINGS.  311 

many,  perhaps  in  all  the  states,  been  granted  b}^  government  since 
the  adoption  of  the  Constitution.  This  grant  is  a  contract,  the 
object  of  which  is  that  the  profits  issumg  from  it  shall  enure  to  the 
benefit  of  the  grantee.  Yet  the  power  of  taxation  may  be  carried 
so  far  as  to  absorb  these  profits.  Does  this  impair  the  obhgation 
of  the  contract  ?  The  idea  is  rejected  by  all;  and  the  proposition 
appears  so  extravagant,  that  it  is  difficult  to  admit  any  resemblance 
in  the  cases.  And  yet  if  the  proposition  for  which  the  plaintiffs 
contend  be  true,  it  carries  us  to  this  point.  That  proposition  is, 
that  a  power  which  is  in  itself  capable  of  being  exerted  to  the  total 
destruction  of  the  grant,  is  inconsistent  with  the  grant;  and  is 
therefore  impliedly  relinquished  by  the  grantor,  though  the  lan- 
guage of  the  instrument  contains  no  allusion  to  the  subject.  If 
this  be  an  abstract  truth,  it  may  be  supposed  universal.  But  it  is 
not  universal;  and  therefore  its  truth  cannot  be  admitted,  in  these 
broad  terms,  in  any  case.  We  must  look  for  the  exemption  in  the 
language  of  the  instrument ;  and  if  we  do  not  find  it  there,  it  would 
be  going  very  far  to  insert  it  by  construction. 

The  power  of  legislation,  and  consequently  of  taxation,  operates 
on  all  the  persons  and  property  belonging  to  the  body  politic.  This 
is  an  original  principle,  which  has  its  foundation  in  society  itself. 
It  is  granted  by  all,  for  the  benefit  of  all.  It  resides  in  government 
as  a  part  of  itself,  and  need  not  be  reserv'ed  when  property  of  any 
description,  or  the  right  to  use  it  in  any  manner,  is  granted  to  in- 
dividuals or  corporate  bodies.  However  absolute  the  right  of  an 
individual  may  be,  it  is  still  in  the  nature  of  that  right,  that  it  must 
bear  a  portion  of  the  pubUc  burthens;  and  that  portion  must  be 
determined  by  the  legislature.  This  vital  power  may  be  abused; 
but  the  Constitution  of  the  United  States  was  not  intended  to 
furnish  the  corrective  for  every  abuse  of  power  which  may  be 
committed  by  the  state  governments.  The  interest,  wisdom, 
and  justice  of  the  representative  body,  and  its  relations  ^\dth  its 
constituents,  furnish  the  only  security,  where  there  is  no  express 
contract,  against  unjust  and  excessive  taxation;  as  well  as  against 
unwise  legislation  generally.  .  -  . 

Judgment  affirmed. 


312  THE  CONTRACT  CLAUSE. 

MUMMA   V.   THE  POTOMAC   COMPANY. 
Supreme  Court  of  the  United  States.     1834. 

[S  Peters,  2S1.]^ 

Error  to  the  Circuit  Court  of  the  District  of  Columbia  and 
County  of  Washington. 

In  1818  Mumma  recovered  a  judgment  for  SoOOO  in  the  Circuit 
Court  of  the  District  of  Columbia,  against  the  Potomac  Company. 
In  1824  a  statute  of  Virgmia  incorporated  the  Chesapeake  and  Ohio 
Canal  Company,  and  provided  that,  upon  the  surrender  of  the 
charter  of  the  Potomac  Company  to  the  new  company,  the  charter 
of  the  Potomac  Company  should  be  vacated  and  annulled.    There- 
upon the  charter  of  the  Potomac  Company  was  surrendered  to  the 
new  company  and  accepted  by  it.     Afterwards,  in  1828,  no  steps 
havmg  been  previously  taken  to  enforce  the  judgment  for  $5000, 
a  writ  of  scire  facias  was  issued  against  the  Potomac  Company  to 
re\ave  the  judgment.      The  Potomac  Company's  attorneys  of 
record  filed  a  plea  and  statement  that  "  since  the  rendition  and 
record  of  said  judgment,  the  said  Potomac  Company,  in  due  pur- 
suance and  execution  of  the  provisions  of  the  charter  of  the  Chesa- 
peake and  Ohio  Canal  Company,  enacted  by  the  states  of  Maryland 
and  Virginia,  and  by  the  Congress  of  the  United  States,  have  duly 
signified  their  assent  to  said  charter,  etc.,  and  have  duly  sur- 
rendered their  charter,  and  conveyed,  in  due  form  of  law,  to  the 
said  Chesapeake  and  Ohio  Canal  Company,  all  the  property, 
rights  and  privileges  by  them  owTied,  possessed  and  enjoyed  under 
the  same;  .  .  .  whereby,  the  said  attorneys  say,  the  charter  of  the 
said  Potomac  Company  became  and  is  vacated  and  annulled,  and 
the  company  and  the  corporate  franchises  of  the  same  are  extinct." 
Thereupon  counsel  for  both  parties  signed  an  agreement  that  *'  the 
truth  of  the  above  suggestion  is  admitted;   and  it  is  agreed  to  be 
submitted  to  the  court,  whether,  imder  such  circumstances,  any 
judgment  can  be  rendered  against  the  Potomac  Company  upon  this 
scire  facias,  reviving  the  judgment  in  said  writ  mentioned."     The 
court  gave  judgment  that  the  plaintiff  take  nothing  by  his  writ; 
and  the  plaintiff  prosecuted  this  writ  of  error. 

Brent  and  Tabbs,  for  plaintiff  in  error;    and  Jones  and  Coxe, 
contra. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MUMMA    V.    THE    POTOMAC    COMPANY.  313 

Story,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Two  points  have  been  made  at  the  bar.  1.  That  the  corporate 
existence  of  the  Potomac  Company  was  not  so  totally  destroyed  by 
the  operation  of  the  deed  of  surrender,  as  to  defeat  the  rights  and 
remedies  of  the  creditors  of  the  company.  2.  That  the  deed  of 
surrender  violates  the  obhgation  of  the  contracts  of  the  companj^, 
and  that  the  legislative  acts  of  Virginia  and  Maryland,  though  con- 
firmed by  the  Congress  of  the  United  States,  are  on  this  account 
void;  and  can  have  no  legal  effect. 

We  think  that  the  agreement  of  the  parties  completely  covers 
the  first  point,  and  precludes  any  examination  of  it.  .  .  . 

Unless,  then,  the  second  point  can  be  maintained,  there  is  an  end 
of  the  cause;  for  there  is  no  pretence  to  say  that  a  scire  facias  can 
be  maintained,  and  a  judgment  had  thereon,  against  a  dead  cor- 
poration, any  more  than  against  a  dead  man.  We  are  of  opinion 
that  the  dissnlntion  of  the  corporation,  under  the  acts  of  Virginia 


and  Maryland  (even  supposmg  tlie  act  ot  confirmation  of  Congress 
out  of  the  way),  cannot,  in  any  just  sense,  be  considered,  within  the 
clause  of  the  C_onstitution^of  the  United  States  on  this  subject,  an 
impairing  of  the  obligation  of  the  contracts  of  the  company  by 
those  states,  any  more  than  the  death  of  a  private  person  can  be 
said  to~unpair  the  ol)ligation  of  his^conTfactsT  The  obligatioiTof 
those  contracts  survives:  and  the  creditors  may  eniorce  their 
claim;5_ggainst  any  property  belonging  to  the  corporationT  whicli 
has  not  p.'i>;sf'(l  into  the  hands  of  bona  fide  purchasers:  but  is  still 
held  in  trust  for  the  company  or  for  the  stockholders  thereof,  at  the 
time  of  its  dissolution,  in  any  mode  permitted  by  the  local  laws. 
Besides,  the  twelfth  section  of  the  act  incorporating  the  Chesa- 
peake and  Ohio  Canal  Companj',  makes  it  the  duty  of  the  president 
and  directors  of  that  company,  so  long  as  there  shall  be  and  remain 
any  creditor  of  the  Potomac  Company,  who  shall  not  have  vested 
his  demand  against  the  same  in  the  stock  of  the  Chesapeake  and 
Ohio  Canal  Company  (which  the  act  enables  him  to  do),  to  pay  to 
such  creditor  or  creditors,  annually,  such  dividend  or  proportion  of 
the  net  amomit  of  the  revenues  of  the  Potomac  Company,  on  an 
average  of  the  last  five  years  preceding  the  organization  of  the  said 
Chesapeake  and  Ohio  Canal  Company,  as  the  demand  of  the  said 
creditor  or  creditors  at  that  time  may  bear  to  the  whole  debt  of  one 
hundred  and  seventy-five  thousand  eight  hundred  dollars  (the 
supposed  aggregate  amount  of  the  debts  of  the  Potomac  Company) . 
So  that  here  is  provided  an  equitable  mode  of  distributing  the  assets 
of  the  company  among  its  creditors,  by  an  apportionment  of  its 


314  THE  CONTRACT  CLAUSE. 

revenues,  in  the  only  mode  in  which  it  could  l^e  practically  done 
upon  its  dissolution;  a  mode  analogous  to  the  distribution  of  the 
assets  of  a  deceased  insolvent  debtor. 

Independent  of  this  view  of  the  matter,  it  would  be  extremely 
difficult  to  maintain  the  doctrine  contended  for  by  the  plaintiff  in 
error,  upon  general  principles.  A  corporation,  by  the  very  terms 
and  nature  of  its  political  existence,  is  subject  to  dissolution,  by  a 
surrender  of  its  corporate  franchises,  and  by  a  forfeiture  of  them 
for  wilful  misuser  and  nonuser.  Every  creditor  must  be  presumed 
to  understand  the  nature  and  incidents  of  such  a  body  politic,  and 
to  contract  with  reference  to  them.  And  it  would  be  a  doctrine 
new  in  the  law,  that  the  existence  of  a  private  contract  of  the  cor- 
poration should  force  upon  it  a  perpetuity  of  existence  contrary  to 
public  policy,  and  the  nature  and  objects  of  its  charter. 

Without  going  more  at  large  into  the  subject,  we  are  of  opinion 
that  the  judgment  of  the  circuit  court  ought  to  be  affirmed.  But 
as  there  is  no  such  corporation  in  esse  as  the  Potomac  Company, 
there  can  be  no  costs  awarded  to  it. 


The  Proprietors  of  the  CHARLES   RIVER   BRIDGE 

V.   The  Proprietors  of  the  WARREN   BRIDGE. 

Supreme  Court  of  the  United  States.     1837. 
[11  Peters,  420.]^ 

Error  to  the  Supreme  Judicial  Court  of  Massachusetts. 

The  original  bill  was  for  an  injunction  to  prevent  the  building  of 
the  Warren  Bridge.  In  1650  the  legislature  of  Massachusetts 
granted  to  Harvard  College  "  the  fiberty  and  power  "  to  dispose  of 
the  ferry  from  Charlestown  to  Boston.  The  college  kept  the  ferry 
by  its  lessees  or  agents  until  1785,  in  which  year  the  legislature 
passed  an  act  incorporating  "  The  Proprietors  of  the  Charles  River 
Bridge  "  for  the  purpose  of  erecting  a  bridge  in  "  the  place  where 
the  ferry  was  then  kept."  The  company  were  to  receive  tolls 
and  pay  two  hundred  pounds  annually  to  the  college.  The  charter 
was  limited  to  forty  years,  and  then  the  bridge  was  to  belong  to  the 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


CHARLES  KIVEB   BRIDGE   V.   WARKEN    BRIDGE.  315 

Commonwealth,  saving  to  the  eoUege,  however    "  ^  ;«r"^;'« 
annual  eompensation  for  the  annual  mcome  of  the  ferry.        The 
bridge  was  opened  in  1786.     In  1792  the  charter  was  extended  t^ 
1856      In  1828  the  legislature  incorporated  "  The  Proprietors  of 
the  Warren  Bridge,"  for  the  purpose  of  erecting  another  bridge,  the 
Charlestown  ends  of  the  two  bridges  being  only  sixteen  rods  apart 
and  the  Boston  ends  about  fifty  rods  apart.     The  Warren  Bridge 
was  to  be  surrendered  to  the  Commonwealth  as  soon  as  the  bmlders 
should  be  reimbursed,  and  in  any  event  not  later  than  six  years 
from  the  bcgimiing  of  tolls.     A  supplemental  b,U  stated  that  the 
bridge  had  been  opened  for  travel;  but  the  answer  denied  this.    In 
1829  the  Supreme  Judicial  Court  decided  that  the  act  mcorporatmg 
the  Warren  Bridge  <lid  not  impair  ^^e  contract  with  the  Charles- 
town  Bridge,  and  dismissed  the  complamants  bill  (7  Pick.  344), 
whereupon  this  writ  of  error  was  taken.  ,    r      , 

T>utL  and  Websl^,  for  the  plaintiffs  in  error ;  and  Grecnlmf  and 

Dora's,  cordra.  ,  ,     , , 

Taney,  C.  J.,  dehvered  the  opinion  of  the  court.  .  .  .  in  the 
argument  here,  it  was  admitted,  that  since  the  filing  of  the  supple- 
mental bill  a  Sufficient  amount  of  toll  had  been  received  by  the 
proprietors  of  the  Warren  Bridge  to  reimburse  all  their  expenses, 
and  that  the  bri.lge  is  now  the  property  of  the  state  and  has  been 
made  a  free  bridge;  and  that  the  value  of  the  franchise  granted  to 
the  proprietors  of  the  Charles  River  Bridge  has  by  this  means  been 
wholly  destroyed.  ...  The  case  will  be  treated  ...  as  if  these 
admitted  facts  were  regularly  before  us.  .  .  . 

The  plaintiffs  in  error  insist,  mainly,  upon  two  grounds:     st. 
That  by  virtue  of  the  grant  of  16.50,  Harvard  College  was  entitled, 
in  perpetuity,  to  the  right  of  keeping  a  ferry  between  Charlestown 
and  Boston;  that  this  right  was  exclusive;  and  that  the  legislature 
had  not  the  power  to  establish  another  ferry  on  the  same  line  o 
travel,  because  it  would  mf ringe  the  rights  of  the  college;  an<  that 
these  rights,  upon  the  erection  of  the  bridge  m  the  p  ace  of  the  ferrj 
under  the  charter  of  1785,  w^ere  transferred  to,  and  became  vested 
in  "  the  proprietors  of  the  Charles  River  Bridge    ;  and  that  under 
and  by  virtue  of  this  transfer  of  the  ferry  right,  the  nghte  of  the 
bridge  company  were  as  exclusive  in  that  line  of  travel  as  the  nghts 
of  the  terry      2d.  That  independently  of  the  ferry  right,  the  acts 
o    h    eglture  of  Massachusetts  of  1785,  and  1792,  by  their  true 
construction,  necessarily  impUed  that  the  legislature  wwld  no 
authorize  another  bridge,  and  especially  a  free  one,  by  the  side  of 
this,  and  placed  m  the  same  line  o£  travel,  whereby  the  franchise 


316  THE  CONTRACT  CLAUSE, 

granted  to  "  the  proprietors  of  the  Charles  River  Bridge  "  should 
be  rendered  of  no  value;  and  the  plamtiffs  in  error  contend,  that  the 
grant  of  the  ferry  to  the  college,  and  of  the  charter  to  the  proprie- 
tors of  the  bridge,  are  both  contracts  on  the  part  of  the  state;  and 
that  the  law  authorizing  the  erection  of  the  Warren  bridge  in  1828, 
impairs  the  obligation  of  one  or  both  of  these  contracts. 

It  is  very  clear,  that  in  the  form  in  which  this  case  comes  before 
us,  being  a  writ  of  error  to  a  state  court,  the  plaintiffs  in  claiming 
under  either  of  these  rights,  must  place  themselves  on  the  ground 
of  contract,  and  cannot  support  themselves  upon  the  principle, 
that  the  law  divests  vested  rights.  .  .  . 

They  must  show  that  the  state  has  entered  into  a  contract  with 
them,  or  those  under  whom  they  claim,  not  to  establish  a  free 
bridge  at  the  place  where  the  Warren  Bridge  is  erected.  .  .  . 

Assumuig  that  the  grant  to  Harvard  College,  and  the  charter  to 
the  bridge  company,  were  both  contracts,  and  that  the  ferry  right 
was  as  extensive  and  exclusive  as  the  plaintiffs  contend  for;  still 
they  cannot  enlarge  the  privileges  granted  to  the  bridge,  unless  it 
can  be  shoAVTi,  that  the  rights  of  Harvard  College  in  this  ferry  have, 
by  assignment,  or  in  some  other  way,  been  transferred  to  the  pro- 
])rietors  of  the  Charles  River  Bridge,  and  still  remain  m  existence, 
vested  in  them,  to  the  same  extent  with  that  in  which  they  were 
held  and  enjoyed  by  the  college  before  the  bridge  was  built.  .  .  . 

It  is  not  suggested  that  there  ever  was,  in  point  of  fact,  a  deed 
of  conveyance  executed  by  the  college  to  the  bridge  company.  .  .  . 
The  validity  of  the  charter  is  not  made  to  depend  on  the  consent  of 
the  college,  nor  of  any  assignment  or  surrender  on  their  part;  and 
the  legislature  deal  with  the  subject,  as  if  it  were  one  exclusively 
within  their  owti  power,  and  as  if  the  ferry  right  were  not  to  be 
transferred  to  the  bridge  company,  but  to  be  extuiguished,  and 
they  appear  to  have  acted  on  the  principle,  that  the  state  by  virtue 
of  its  sovereign  powers  and  emment  domain,  had  a  right  to  take 
away  the  franchise  of  the  ferry;  because,  ui  their  judgment,  the 
pubHc  mterest  and  convenience  would  be  better  promoted  by  a 
bridge  in  the  same  place;  and  upon  that  pruiciple  they  proceed  to 
make  a  pecuniary  compensation  to  the  college,  for  the  franchise 
thus  taken  away:  and  as  there  is  an  express  reservation  of  a  con- 
tinuing pecuniary  compensation  to  the  college,  when  the  bridge 
shall  become  the  property  of  the  state,  and  no  provision  whatever 
for  the  restoration  of  the  ferry  right,  it  is  evident  that  no  such  right 
was  intended  to  be  reserved  or  continued.     The  ferry,  with  all  its 


CHARLES   RIVER   BRIDGE    V.    WARREN   BRIDGE.  317 

privileges,  was  intended  to  be  forever  at  an  end,  and  a  compensation 
in  money  was  given  in  lieu  of  it.  .  .  . 

As  the  proprietors  of  the  bridge  are  neither  the  legal  nor  equitable 
assignees  of  the  college,  it  is  not  easy  to  perceive  how  the  ferry 
franchise  can  be  invoked  in  aid  of  their  claims,  if  it  were  even  still  a 
subsisting  privilege;  and  had  not  been  resumed  by  the  state,  for 
the  purpose  of  building  a  bridge  in  its  place. 

Neither  can  the  extent  of  the  pre-existing  ferry  right,  whatever 
it  may  have  been,  have  any  influence  upon  the  construction  of  the 
written  charter  for  the  bridge.  ...  As  the  franchise  of  the  ferry, 
and  that  of  the  bridge,  are  different  in  their  nature,  and  were  each 
established  by  separate  grants,  which  have  no  words  to  connect  the 
privileges  of  the  one  with  the  privileges  of  the  other;  there  is  no 
rule  of  legal  interpretation,  which  would  authorize  the  court  to 
associate  these  grants  together,  and  to  infer  that  any  privilege  was 
intended  to  be  given  to  the  bridge  company,  merely  because  it  had 
been  conferred  on  the  ferry.  The  charter  to  the  bridge  is  a  written 
instrument  which  must  speak  for  itself,  and  be  interpreted  by  its 
ovm  terms. 

This  ])rings  us  to  the  act  of  the  legislature  of  Massachusetts,  of 
1785,  by  which  the  plaintiffs  were  incorporated  by  the  name  of 
"  The  Proprietors  of  the  Charles  River  Bridge  ";  and  it  is  here, 
and  in  the  law  of  1792,  prolongmg  their  charter,  that  we  must  look 
for  the  extent  and  nature  of  the  franchise  conferred  upon  the  plain- 
tiffs. 

Much  has  been  said  in  the  argument  of  the  principles  of  construc- 
tion by  which  this  law  is  to  be  expounded,  and  what  undertakings, 
on  the  part  of  the  state,  may  be  implied.  The  court  think  there 
can  be  no  serious  difficulty  on  that  head.  It  is  the  grant  of  certain 
franchises  by  the  public  to  a  private  corporation,  and  in  a  matter 
where  the  public  interest  is  concerned.  The  rule  of  construction  in 
such  cases  is  well  settled,  both  in  England  and  by  the  decisions  of 
our  o^vn  tribunals.  In  2  Barn.  &  Adol.  793,  in  the  case  of  the  Pro- 
prietors of  the  Stourbridge  Canal  against  Wheely  and  others,  the 
court  say,  "  the  canal  having  been  made  under  an  act  of  parlia- 
ment, the  rights  of  the  plaintiffs  are  derived  entirely  from  that  act. 
This,  like  many  other  cases,  is  a  bargain  between  a  company  of  ad- 
venturers and  the  public,  the  terms  of  which  are  expressed  in  the 
statute;  and  the  rule  of  construction  in  all  such  cases,  is  now  fully 
established  to  be  this:  that  any  ambiguity  in  the  terms  of  the  con- 
tract, must  operate  agamst  the  adventurers,  and  m  favor  of  the 


318  THE  CONTRACT  CLAUSE. 

public,  and  the  plaintiffs  can  claim  nothing  that  is  not  clearly  given 
them  by  the  act."  .  .  . 

It  would  present  a  singular  spectacle,  if,  while  the  courts  in  Eng- 
land are  restraining,  within  the  strictest  limits,  the  spirit  of  monop- 
oly, and  exclusive  privileges  in  nature  of  monopolies,  and  confining 
corporations  to  the  privileges  plainly  given  to  them  in  their  charter; 
the  courts  of  this  country  should  be  found  enlargmg  these  privi- 
leges by  implication;  and  construing  a  statute  more  unfavorably 
to  the  public,  and  to  the  rights  of  the  community,  than  would  be 
done  in  a  like  case  in  an  English  court  of  justice. 

But  we  are  not  now  left  to  determine,  for  the  first  time,  the  rules 
by  which  public  grants  are  to  be  construed  in  this  country.  The 
subject  has  already  been  considered  in  this  court;  and  the  rule  of 
construction,  above  stated,  fully  established.  .  .  . 

No  one  will  question  that  the  interests  of  the  great  body  of  the 
people  of  the  state,  would,  in  this  instance,  be  affected  by  the  sur- 
render of  this  great  line  of  travel  to  a  smgle  corporation,  with  the 
right  to  exact  toll,  and  exclude  competition  for  seventy  years. 
Wliile  the  rights  of  private  property  are  sacredly  guarded,  we  must 
not  forget  that  the  community  also  have  rights,  and  that  the  happi- 
ness and  well-being  of  every  citizen  depend  on  their  faithful  pre- 
servation. 

Adopting  the  rule  of  construction  above  stated  as  the  settled  one, 
we  proceed  to  apply  it  to  the  charter  of  1785,  to  the  proprietors  of 
the  Charles  River  Bridge.  This  act  of  incorporation  is  in  the  usual 
form,  and  the  privileges  such  as  are  commonly  given  to  corpora- 
tions of  that  kind.  It  confers  on  them  the  ordinary  faculties  of  a 
corporation,  for  the  purpose  of  building  the  bridge;  and  establishes 
certain  rates  of  toll,  which  the  company  are  authorized  to  take. 
This  is  the  whole  grant.  There  is  no  exclusive  privilege  given  to 
them  over  the  waters  of  Charles  River,  above  or  below  their  bridge. 
No  right  to  erect  another  bridge  themselves,  nor  to  prevent  other 
persons  from  erecting  one.  No  engagement  from  the  state,  that 
another  shall  not  be  erected;  and  no  undertaking  not  to  sanction 
competition,  nor  to  make  improvements  that  may  diminish  the 
amount  of  its  income.  Upon  all  these  subjects  the  charter  is 
silent;  and  nothing  is  said  in  it  about  a  luie  of  travel,  so  much  in- 
sisted on  in  the  argument,  in  which  they  are  to  have  exclusive  privi- 
leges. No  words  are  used,  from  which  an  intention  to  grant  any  of 
these  rights  can  be  inferred.  If  the  plaintiff  is  entitled  to  them,  it 
must  be  imphed,  simply,  from  the  nature  of  the  grant;  and  cannot 
be  inferred  from  the  words  by  which  the  grant  is  made. 


CHARLES   RIVER   BRIDGE    V.    WARREN   BRIDGE,  319 

The  relative  position  of  the  Warren  Bridge  has  alreadj^  been  de- 
scribed. It  does  not  interrupt  the  passage  over  the  Charles  River 
Bridge,  nor  make  the  way  to  it  or  from  it  less  convenient.  None 
of  the  faculties  or  franchises  granted  to  that  corporation,  have  been 
revoked  by  the  legislature;  and  its  right  to  take  the  tolls  granted  by 
the  charter  remains  unaltered.  In  short,  all  the  franchises  and 
rights  of  property  enumerated  in  the  charter,  and  there  mentioned 
to  have  "been  granted  to  it,  remain  unimpaired.  But  its  income  is 
destroyed  by  the  Warren  Bridge;  which,  being  free,  draws  off  the 
passengers  and  property  which  would  have  gone  over  it,  and  ren- 
ders their  franchise  of  no  value.  This  is  the  gist  of  the  complaint. 
For  it  is  not  pretended,  that  the  erection  of  the  Warren  Bridge 
would  have  done  them  any  injury,  or  in  any  degree  affected  their 
right  of  property;  if  it  had  not  diminished  the  amount  of  their  tolls. 
In  order  then  to  entitle  themselves  to  relief,  it  is  necessary  to  show, 
that  the  legislature  contracted  not  to  do  the  act  of  which  they  com- 
plain; and  that  they  impaired,  or,  in  other  words,  violated  that  con- 
tract by  the  erection  of  the  Warren  Bridge. 

The  inquiry  then  is,  does  the  charter  contain  such  a  contract  on 
the  part  of  the  state  ?  Is  there  any  such  stipulation  to  be  found  in 
that  instrument  ?  It  must  be  admitted  on  all  hands,  that  there 
is  none  —  no  words  that  even  relate  to  another  bridge,  or  to  the 
diminution  of  their  tolls,  or  to  the  line  of  travel.  If  a  contract  on 
that  subject  can  be  gathered  from  the  charter,  it  must  be  by  impli- 
cation; and  cannot  be  found  in  the  words  used.  Can  such  an 
agreement  be  implied  ?  The  rule  of  construction  before  stated  is 
an  answer  to  the  question.  In  charters  of  this  description,  no 
rights  are  taken  from  the  public,  or  given  to  the  corporation,  be- 
yond those  which  the  words  of  the  charter,  by  their  natural  and 
proper  construction,  purport  to  convey.  There  are  no  words 
which  import  such  a  contract  as  the  plaintiffs  in  error  contend  for, 
and  none  can  be  implied;  and  the  same  answer  must  be  given  to 
them  that  was  given  by  this  court  to  the  Providence  Bank.  The 
whole  community  are  interested  in  this  inquiry,  and  they  have  a 
right  to  require  that  the  power  of  promoting  their  comfort  and  con- 
venience, and  of  advancing  the  public  prosperity,  by  providing  safe, 
convenient,  and  cheap  ways  for  the  transportation  of  produce,  and 
the  purposes  of  travel,  shall  not  be  construed  to  have  been  sur- 
rendered or  diminished  by  the  state;  unless  it  shall  appea^by  plain 
words,  that  it  was  intended  to  be  done. 

But  the  case  before  the  court  is  even  still  stronger  against  any 
such  implied  contract,  as  the  plaintiffs  in  error  contend  for.     The 


320  THE  CONTRACT  CLAUSE. 

Charles  River  Bridge  was  completed  in  1786.  The  time  limited  for 
the  duration  of  the  corporation  by  their  original  charter  expired  in 
1826.  When,  therefore,  the  law  passed  authorizing  the  erection  of 
the  Warren  Bridge,  the  proprietors  of  Charles  River  Bridge  held 
their  corporate  existence  under  the  law  of  1792,  which  extended 
their  charter  for  thirty  years;  and  the  rights,  privileges,  and  fran- 
chises of  the  company  must  depend  upon  the  construction  of  the 
last  mentioned  law,  taken  in  connection  with  the  act  of  1785. 

The  act  of  1792,  which  extends  the  charter  of  this  bridge,  incor- 
porates another  company  to  build  a  bridge  over  Charles  River; 
furnishing  another  communication  with  Boston,  and  distant  only 
between  one  and  two  miles  from  the  old  bridge. 

The  first  six  sections  of  this  act  incorj^orate  the  proprietors  of 
the  West  Boston  Bridge,  and  define  the  privileges,  and  describe 
the  duties  of  that  corporation.  In  the  seventh  section  there  is  the 
following  recital:  "And  whereas  the  erection  of  Charles  River 
Bridge  was  a  work  of  hazard  and  puljlic  utility,  and  another  bridge 
in  the  place  of  West  Boston  Bridge  may  diminish  the  emoluments 
of  Charles  River  Bridge;  therefore,  for  the  encouragement  of  en- 
terprise," they  proceed  to  extend  the  charter  of  the  Charles  River 
Bridge,  and  to  continue  it  for  the  term  of  seventy  years  from  the 
day  the  bridge  was  completed;  subject  to  the  conditions  prescribed 
in  the  origmal  act,  and  to  be  entitled  to  the  same  tolls.  It  appears, 
then,  that  by  the  same  act  that  extended  this  charter,  the  legisla- 
ture established  another  bridge,  which  they  knew  would  lessen  its 
profits;  and  this,  too,  before  the  expiration  of  the  first  charter,  and 
only  seven  years  after  it  was  granted;  thereby  showing,  that  the 
state  did  not  suppose  that,  by  the  terms  it  had  used  in  the  first  law, 
it  had  deprived  itself  of  the  power  of  making  such  public  improve- 
ments as  might  impair  the  profits  of  the  Charles  River  Bridge;  and 
from  the  language  used  in  the  clauses  of  the  law  by  which  the  char- 
ter is  extended,  it  would  seem  that  the  legislature  were  especially 
careful  to  exclude  any  inference  that  the  extension  was  made  upon 
the  ground  of  compromise  A\ath  the  bridge  company,  or  as  a  com- 
pensation for  rights  impaired. 

On  the  contrary,  words  are  cautiously  employed  to  exclude  that 
conclusion;  and  the  extension  is  declared  to  be  granted  as  a  reward 
for  the  hazard  they  had  run,  and  "for  the  encouragement  of 
enterprise."  The  extension  was  given  because  the  company  had 
undertaken  and  executed  a  work  of  doubtful  success;  and  the  im- 
provements which  the  legislature  then  contemplated  might  diminish 
the  emoluments  they  had  expected  to  receive  from  it.     It  results 


CHARLES   RIVER   BRIDGE   V.    WARREN    BRIDGE.  321 

from  this  statement,  that  the  legislature  in  the  very  law  extending 
the  charter,  asserts  its  rights  to  authorize  improvements  over 
Charles  River  which  would  take  off  a  portion  of  the  travel  from 
this  bridge  and  duninish  its  profits;  and  the  bridge  company 
accept  the  renewal  thus  given,  and  thus  carefully  comiected  with 
this  assertion  of  the  right  on  the  part  of  the  state.  Can  they, 
when  holdmg  their  corporate  existence  under  this  law,  and  deriv- 
ing their  franchises  altogether  from  it,  add  to  the  privileges 
expressed  in  their  charter  an  implied  agreement,  which  is  in  direct 
conflict  with  a  portion  of  the  law  from  which  they  derive  their 
corporate  existence  ?  Can  the  legislature  be  presumed  to  have 
taken  upon  themselves  an  implied  obligation  contrary  to  its  omi 
acts  and  declarations  contained  in  the  same  law?  .  .  . 

Indeed,  the  practice  and  usage  of  almost  every  state  in  the  Union, 
old  enough  .to  have  commenced  the  work  of  internal  improvement, 
is  opposed  to  the  doctrine  contended  for  on  the  part  of  the  plaintiffs 
in  error.  Turnpike  roads  have  been  made  in  succession,  on  the  same 
Ime  of  travel;  the  later  ones  interfering  materially  with  the  profits 
of  the  first.  These  corporations  have,  in  some  instances,  been 
utterly  ruined  by  the  introduction  of  newer  and  better  modes  of 
transportation,  and  travelling.  In  some  cases,  railroads  have  ren- 
dered the  turnpike  roads  on  the  same  line  of  travel  so  entirely  use- 
less, that  the  franchise  of  the  turnpike  corporation  is  not  worth 
preservmg.  Yet  in  none  of  these  cases  have  the  corporations  sup- 
posed that  their  privileges  were  invaded,  or  any  contract  violated 
on  the  part  of  the  state.  .  .  . 

The  judgment  of  the  Supreme  Judicial  Court  of  the  Common- 
wealth of  Massachusetts,  dismissing  the  plaintiffs'  bill,  must,  there- 
fore, be  affirmed,  with  costs. ^ 

McLean,  J.  .  .  .  Although  I  am  clear  that  the  merits  are  on 
the  side  of  the  complainants,  I  am  in  favor  of  dismissing  the  bill, 
for  want  of  jurisdiction. 

Story,  J.,  dissenting.  .  .  .  My  j udgment  is,  that  the  act  .  .  . 
granting  the  charter  of  Warren  Bridge  is  an  act  impairing  the 
obUgation  of  the  prior  contract  and  grant  to  the  proprietors  of 
Charles  River  Bridge.  .  .  . 

Thompson,  J.  The  opinion  delivered  by  .  .  .  Mr.  Justice 
Story  I  have  read.  ...     I  concur  entirely.  .  .  . 

^  Compare  The  Binghamton  Bridge,  3  Wall.  51  (1866).  —  Ed. 


322  THE  CONTRACT  CLAUSE. 

BRONSON   V.   KINZIE  and  others. 

Supreme  Court  of  the  United  States.     1843. 

[1  Howard,  ^n.]' 

This  case  came  before  the  court  upon  a  certificate  of  division  of 
opinion  in  the  Circuit  Court  of  the  United  States  for  the  District 
of  IlUnois,  in  a  foreclosure  suit. 

In  1838  Kinzie  executed  a  bond  to  Bronson  for  the  payment  of 
$4000  on  July  1,  1842,  with  interest  payable  semi-annually,  and 
to  secure  payment  executed  a  mortgage  of  Illinois  realty,  the  mort- 
gage covenanting  that  on  default  Bronson  might  enter  upon  the 
mortgaged  premises,  sell  them  at  public  auction,  and  as  attorney 
for  the  mortgagor  convey  them  to  the  purchaser,  rendering  to  the 
mortgagor  any  excess  over  the  debt  and  costs.    The  Illinois  legisla- 
ture enacted  on  Feb.  19,  1841,  that  mortgagors  might  redeem 
premises  within  twelve  months  after  sale  on  foreclosure,  and  on 
Feb.  27, 1841,  that  there  must  not  be  a  foreclosure  sale  for  less  than 
two-thirds  of  a  valuation  to  be  made  by  three  householders.     The 
latter  act  covered  judgments  rendered  before  May  1,  1841,  and 
contracts  or  causes  of  action  accruing  before  that  day,  and  no 
others.     On  March  27,  1841 ,  Bronson  filed  a  bill  for  foreclosure  by 
reason  of  default  in  payment  of  interest.     On  June  19,  1841,  the 
Circuit  Court  adopted  rules  ordermg  that  the  act  of  Feb.  19,  1841, 
be  followed  except  where  special  direction  should  be  given  in  the 
decree  of  sale,  and  ordering  that  the  act  of  Feb.  27,  1841,  be  fol- 
lowed in  sales  on  execution.      In  December  term,  1841,  on  final 
hearing,  the  judges  were  divided  in  opinion  as  to  framing  the  final 
decree,  and  certified  to  the  Supreme  Court  questions  as  to  applying 
the  rule  and  statutes  above  described. 

Taney,  C.  J.,  dehvered  the  opinion  of  the  court.  .  .  . 
The  case  has  been  submitted  to  the  court,  for  decision,  by  a 
-written  agreement  between  the  counsel  on  both  sides.  On  the  part 
of  the  complainant,  a  printed  argument  has  been  filed,  but  none  has 
been  offered  on  behalf  of  the  defendant.  As  the  case  involves  a 
constitutional  question  of  great  importance,  we  should  have  pre- 
ferred a  full  argument  at  the  bar.  .  .  . 

The  laws  of  a  state,  regulating  the  process  of  its  courts,  and  pre- 
scribing the  manner  in  which  it  shall  be  executed,  of  course,  do  not 
bind  the  courts  of  the  United  States,  whose  proceedings  must  be 
governed  by  the  acts  of  Congress.      The  act  of  1792,  however, 

1  A  statement  has  been  framed  upon  the  opinion  of  the  com-t.  —  Ed. 


BRONSON    V.    KINZIE.  323 

adopted  the  process  used  in  the  state  courts,  as  it  stood  in  1789; 
and,  since  then,  the  act  of  1828,  on  the  same  subject,  has  been 
passed:  and  the  3d  section  of  this  law  directs  thai  final  process 
issued  on  judgments  and  decrees  in  any  of  the  courts  of  the  United 
States,  and  the  proceedings  thereupon,  shall  be  the  same,  except 
their  style,  in  each  state,  respectively,  as  were  then  used  in  the 
courts  of  such  state,  and  authorizes  the  courts  of  the  United  States, 
if  they  see  fit,  in  their  discretion,  by  rules  of  court,  so  far  to  alter 
final  process  as  to  conform  the  same  to  any  change  which  might 
afterwards  be  adopted,  by  the  legislatures  of  the  respective  states, 
for  the  state  courts.  Any  acts  of  a  state  legislature,  therefore,  in 
relation  to  final  process,  passed  since  1828,  are  of  no  force  in  the 
courts  of  the  United  States,  unless  adopted  by  rules  of  court, 
according  to  the  provisions  of  this  act  of  Congress.  And,  although 
such  state  laws  may  have  been  so  adopted,  yet  they  are  inoperative 
and  of  no  force,  if  in  conflict  with  the  Constitution  or  an  act  of 

Congress. 

As  concerns  the  obligations  of  the  contract  upon  which  this  con- 
troversy  has  arisen,  they  depend  upon  the  laws  of  Illinois  as  thev 
stood  at  the  tune  the  mortgage  deed  was  executed.  The  money 
duewas  md(^&'d  to  be  paid  m  Aew  iork.  But  the  mortgage  given 
to  secure  the  debt  was  made  in  Illinois  for  real  property  situated  in 
that  state,  and  the  rights  which  the  mortgagee  acquired  in  the 
premises  depended  upon  the  laws  of  that  state.  In  other  words, 
the  existing  laws  of  Illinois  created  and  defined  the  legal  and  equi- 
table oT) ligations  ot  tHp  mortPja^e  contract. 

If  the  laws  ot  the  state  passed  afterwards  had  done  nothing  more 
than  change  the  remedy  upon  contracts  of  this  description,  they 
would  be  liable  to  no  constitutional  objection.  For,  undoubtedly, 
a  state  may  regulate  at  pleasure  the  modes  of  proceedmg  in  its 
courts  in  relation  to  past  contracts  as  well  as  future.  It  may,  for 
example,  shorten  the  period  of  time  within  which  claims  shall  be 
barred  by  the  statute  of  lunitations.  It  may,  if  it  thinks  proper, 
direct  that  the  necessary  implements  of  agriculture,  or  the  tools  of 
the  mechanic,  or  articles  of  necessity  in  household  furniture,  shall, 
hke  wearing  apparel,  not  be  liable  to  execution  on  judgments. 
Regulations  of  this  description  have  always  been  considered,  in 
eve'ry  civilized  community,  as  properiy  belonging  to  the  remedy,  to 
be  exercised  or  not  by  every  sovereignty,  according  to  its  owti  \4ews 
of  policy  and  humanity.  It  must  reside  in  every  state  to  enable  it 
CO  secure  its  citizens  from  unjust  and  harassing  litigation,  and  to 
protect  them  in  those  pursuits  which  are  necessary  to  the  existence 


324  THE  CONTRACT  CLAUSE. 

and  well-being  of  every  community.  And ,  tilthoiish  a  new  remedy 
may  be  deemed  less  convenient  than  the  oUrpne,  and  may  m  soiiie 
d(^re6  render  Ihe  recovery  of  debts  mure  tardy  and  (Hfhcult,  yet^ it 
wiTrnot  iullow  tTiat  the  law  is  unconstitutional.  W  liatever  Tie- 
\^m>^  TuonTv  to  the  remeOv  may  be  altered  according  to  the  wilU^f 
tlic"state,  provided  the  alteration  does  not  imi)air  the  obligation  of 
-ttxe  contract.  .But  it  that  eltect  is  producecl,  it  is  mmiaterial 
whether  it  is  done  by  acting  on  the  remeily  ()rdirectly  on  tlie  con- 
tr'actTtself.     In  either  case  it  is  prohibited  l)y  the  ronstitution. 

This  subject  came  before  the  Supreme  Court  in  tiie  case  ofTi rcen 
V.  Biddle,  decided  m  1823,  and  reported  in  8  Wheat.  1.  .  .  . 

It  is  difficult,  perhaps,  to  draw  a  line  that  would  be  applicable  in 
all  cases  between  legitimate  alterations  of  the  remedy  and  pro- 
visions which,  in  the  form  of  remedy,  impair  the  right.  But  it  is 
manifest  that  the  obUgation  of  the  contract,  and  the  rights  of  a 
party  under  it,  may,  in  effect,  be  destroyed  by  denying  a  remedy 
altogether;  or  may  be  seriously  impaired  by  burdening  the  pro- 
ceedings with  new  conditions  and  restrictions,  so  as  to  make  the 
remedy  hardly  worth  pyrsumg.  And  no  one,  we  presume,  would 
say  that  there  is  any  substantial  difference  l)etween  a  retrospective 
law  declaring  a  particular  contract  or  class  of  contracts  to  be  abro- 
gated and  void,  and  one  which  took  away  all  remedy  to  enforce 
them,  or  encumbered  it  with  conditions  that  rendered  it  useless  or 
impracticable  to  pursue  it.^  .  .  . 

The  law  of  Feb.  19,  1841,  .  .  .appears  to  the  court  not  to  act 
mereTyonthe  remedy,  but  directly  upon  the  contract  itself,  ancFto 
engrafrnpou  it  lievTcoiTcIitions  injurious  and  unjust  to  the  mort- 


gage^. ... 

Thelawof  Feb.  27,1841,  .  .  .  apparently  acts  upon  the  rc-medy, 
and  noUnTeHTy  gpoii  HigTOTrFfact.  Y  et  its  ettect  is  to  depnve  the 
party  ot'  his  pre-existmg  right  to  foreclose  the  mortgage  by  a  sale 
of"the  premises^  and  to  impose  upon  him  conditions;  which  would 
frequently  render  any  sale  altogether  impossible.  And  this  law  is 
still  more  objectionable,  because  it  is  not  a  general  one,  ...  but 
is  confined  to  judgments  rendered,  and  contracts  made,  prior  to 
May  1,  1841.  The  act  was  passed  on  Feb.  27  in  that  year;  and  it 
operates  r.^ain1y  nn  pfl^t  contrags^andjiiot^  tuture.  it  the  con- 
trflctTihtended  to  be  affected  by  itTiad  been  specifically  enumer- 
ated  in  the  law,  and  these  conditions  applied  to  them,  while  other 
contracts  of  the  sam_e  description  were  to  be  enforced  in  the  ordi- 
nary course  of  legal  proceedmgs,  no  one  would  doubt  that  such  a 
1  Here  was  quoted  a  paragraph  from  1  Bl.  Com.  55-56.  —  Ed. 


MARYLAND    V.    BALTIMORE    &    OHIO    R.    CO.  325 

law  was  unconstitutional.  Here  a  particular  class  of  contracts  is 
selected,  and  encumbered  T\atli  these  new  conditions;  and  it  can 
Bisike  no  cliti'erence,  m  principle,  whether  they  are  described  by  the 
names  of  theparties,  or  by  the  time  at  which  they  were  made.  .  .  . 
We  therefore  answer :  — 

1 .  That  the  decree  should  direct  the  premises  to  be  sold  at  auc- 
tion to  the  hishe"st  bidder,  A\ithout  regard  to  the  law  of  Feb.  19, 
1841,  which  gives  the  right  of  redemption  to  the  mortgagor  tor 
twelve  months.  .  .  . 

2.  T^'^t  ^^^  rl^pypp  ghnnlrl  rlirPft,  jhe  sale  of  the  mortgap^ed  prem- 
ises,  without  being  first  valued  by  three  householders,  and  with^ 
out  requiring  two-thirds  of  the  amount  of  the  said  valuation  tQ.be 
bid^accorduig  to  the  law  of  Feb.  27,  1,S41.  .  .  . 

McLean,  J.,  dissented.  .  .  . 

I  think,  in  the  case  under  consideration,  that  the  laws  of  Illinois 
referred  to  do  not  apply,  and,  therefore,  I  agree  to  the  answers 
given  by  the  court  to  the  points  certified. 


MARYLAND,   for  the  use  of  Wa.shington  County, 
V.  BALTIMORE  AND   OHIO   RAILROAD  CO. 

Supreme  Court  of  the  United  States.     1845. 

[3  Howard,  534.]  i 

Error  to  the  Court  of  Appeals  for  the  Western  Shore  of  Mary- 
land. 

At  the  session  of  1835  the  legislature  of  Maryland  passed  an  act 
entitled  "  An  act  for  the  promotion  of  internal  improvement,"  by 
which,  on  certain  terms,  a  subscnption  of  83,000,000  was  made  to 
the  capital  stock  of  the  Baltimore  and  Ohio  Railroad  Company,  and 
it  was  declared  to  be  the  duty  of  the  company  to  locate  and  con- 
struct the  road  so  as  to  pass  through  certam  places  in  Washington 
county,  and  it  was  provided  that  if  the  company  did  not  so  locate 
the  road  it  should  forfeit  one  million  dollars  to  the  state  for  the  use 
of  Washington  county.  The  act  was  accepted  by  the  raikoad 
company,  and  the  subscription  was  made  by  the  state.  The  com- 
1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


326  THE  CONTRACT  CLAUSE. 

pany  having  finall}^  so  located  its  road  as  not  to  pass  through  the 
places  prescribed,  an  action  of  debt  for  $1,000,000  was  brought 
against  the  company  in  the  County  Court  of  Frederick  County,  in 
the  name  of  the  state,  for  the  use  of  the  county.  Thereupon  the 
legislature  at  the  session  of  1840  passed  an  act  repealing  that  part 
of  the  earher  act  which  required  the  road  to  pass  through  the 
county,  remitting  the  forfeiture  of  $1,000,000,  and  declaring  the 
suit  discontinued.  The  defendant  pleaded  the  general  issue  and 
set  forth  the  act  of  1840.  Upon  an  agreed  statement  of  facts,  the 
court  gave  judgment  for  the  defendant.  The  judgment  was 
affirmed  by  the  Court  of  Appeals. 

/.  Spencer  and  Sergeant,  for  the  plaintiff  in  error;  and  Nelson 
and  R.  Johnson,  contra. 

Taney,  C.  J.,  deUvered  the  opinion  of  the  Court.  .  .  .  Un- 
doubtedly, if  the  money  was  due  to  Washington  countv  bv  con- 
tract, the  act  of  T840,  which  altogether  takes  away  the  reiTied\\ 
would  be  moperativeand  void.  But  even  if  the  provisions  upon 
this  subject  m  tHeact  oTTSSS- could  be  regarded  as  a  contract  with 
the  railroad  company,  it  would  be  difficult  to  maintain  that  the 
county  was  a  party  to  the  agreement  or  that  it  acquired  any  private 
or  separate  interest  under  it,  distinct  from  that  of  the  state.  It  was 
certainly  at  that  time  the  policy  of  the  state  to  require  the  road  to 
pass  through  the  places  mentioned  in  the  law,  and  if  it  failed  to  do 
so,  to  appropriate  the  forfeiture  to  the  use  of  the  county.  But  it 
cannot  be  presumed  that  in  making  this  appropriation  the  legisla- 
ture was  governed  merely  by  a  desire  to  advance  the  interest  of  a 
smgle  county,  without  any  reference  to  the  interests  of  the  rest  of 
the  state.  On  the  contrary,  the  whole  scope  of  the  law  shows  that 
it  was  legislatmg  for  state  purposes,  making  large  appropriations 
for  miprovements  in  different  places;  and  if  the  policy  which  at 
that  time  induced  it  to  prescribe  a  particular  course  for  the  road, 
and  in  case  it  was  not  followed  to  exact  from  the  company  $1,000,- 
000  and  devote  it  to  the  use  of  Washington  county,  was  afterwards 
discovered  to  be  a  mistaken  one,  and  Ukely  to  prove  highly  injuri- 
ous to  the  rest  of  the  state,  it  had  unquestionably  the  power  to 
change  its  policy,  and  allow  the  company  to  pursue  a  different 
course,  and  to  release  it  from  its  obhgations  both  as  to  the  direction 
of  the  road  and  the  payment  of  the  money.  For,  in  doing  this,  it 
was  dealing  altogether  with  matters  of  public  concern,  and  inter- 
fered with  no  private  right;  for  neither  the  commissioners,  nor  the 
county,  norjtny  one  of  its  citizens",  had  acquired  any  separatror 
pnvatejnterest  whlchcouid  be  maintained  m  a  courl  ol  f  uslid^.  .  .  . 


MARYLAND    V.    BALTIMORE    &    OHIO    R.    CO.  327 

The  several  counties  are  nothing  more  than  certain  portions  of 
territory  into  which  the  state  is  cUvicled  for  the  more  convenient 
exercise  of  the  powers  of  government.  They  form  together  one 
poUtical  body  in  which  the  sovereignty  resides.  And  in  passing 
the  law  of  1835,  the  people  of  Washington  county  did  not  and  could 
not  act  as  a  commimity  having  separate  and  distinct  interests  of 
their  owci,  but  as  a  portion  of  the  sovereignty;  their  delegates  to 
the  General  Assembly  acting  in  conjunction  with  the  delegates 
from  every  other  part  of  the  state,  and  legislating  for  pubHc  and 
state  purposes,  and  the  validity  of  the  law  did  not  depend  upon 
their  assent  to  its  provisions,  as  it  would  have  been  equally  oblig- 
atory upon  them,  if  every  one  of  their  delegates  had  voted  against 
it,  provided  it  was  passed  by  a  constitutional  majority  of  the  Gen- 
eral Assembly.  And  whether  the  money  was  due  by  contract  or 
otherwise,  it  must,  if  received  and  applied  to  the  use  of  the  county, 
have  yet  been  received  and  appKed  by  the  state  to  pubhc  purposes 
in  the  county.  .  .  . 

Indeed,  if  this  money  is  to  be  considered  as  due,  either  to  the 
commissioners  or  to  the  county,  by  contract  with  the  railroad  com- 
pany, so  that  it  may  be  recovered  in  this  suit,  in  opposition  to  the 
will  and  policy  of  the  state,  it  would  follow  necessarily  that  it  might 
have  been  released  by  the  party  entitled,  even  if  the  state  had  de- 
sired to  enforce  it.  And  if  the  state  had  adhered  to  the  policy  of 
the  act  in  question,  and  supposed  it  to  be  for  the  public  interest  to 
insist  that  the  road  should  pass  along  the  Hue  prescribed  in  that 
law,  or  the  company  be  compelled  to  pay  the  million  of  dollars, 
accordmg  to  the  construction  now  contended  for,  the  commission- 
ers or  the  county  might  have  counteracted  the  -^-ishes  of  the  state, 
and,  by  releasing  the  company  from  the  obligation  to  pay  this 
money,  allowed  them  to  locate  the  road  upon  any  other  line.  .  .  . 
Whether  the  million  of  dollars  was  reserved  by  contract,  or  inflicted 
as  a  penalty,  such  a  construction  of  the  law  cannot  be  maintained. 

But  we  thmk  it  very  clear  that  this  was  a  penalty,  to  be  inflicted 
if  the  railroad  company  did  not  follow  the  Ime  pointed  out  m  the 
law.  It  is  true,  that  the  act  of  1835,  which  changed  in  some  im- 
portant particulars  the  obUgations  imposed  by  the  original  charter, 
would  not  have  been  bmdmg  on  the  company  without  its  consent ; 
and  the  first  section,  therefore,  contains  a  provision  requiring  the 
consent  of  the  company  in  order  to  give  it  vaUdity.  And  when  the 
company  assented  to  the  proposed  alterations  in  their  charter,  and 
agreed  to  accept  the  law,  it  undoubtedly  became  a  contract  between 
it  and  the  state;  but  it  was  a  contract  in  no  other  sense  than  every 


328  THE  CONTRACT  CLAUSE. 

charter,  whether  original  or  supplementary,  is  a  contract,  where 
rights  of  private  property  are  acquired  under  it.  Yet,  although  this 
sujjplementary  charter  was  a  contract  in  this  spns;p  ^f  tl^'  trr'"\i  '^ 
doesjiot  l)V  any  means  follow  that  the  legislature  might  not,  in  th^ 
charter,  impose  duties  and  obligations  upon  the  company,  and  m-. 
flict  penalties  and  forfeituresas  a  punishment  for  its  disobedience, 

whiT^Tmic^t  ^^  nr.fr.rnorl  o gaingfJf^nJ^JTP^  ftf  ^rjminnl  profwd- 

ings.  and  as  the  punishment  of  anoffence  against  the  law.  Such 
penal"provtsionsargto  be  found  in  many  charters,  and  we  are  not 
awa  rp"nf  any  PRSP  in  whuJTlJTpy  hflve  been  held  to  be  mere  miiUers 
of  contracTi  AnH  in  th^casebefom  the  court,,  the  languagcof  the 
law  requiring  the  company  to  locate  the  road  so  as  to  pass  through 
the  places  therein  mentioned,  is  certainly  not  the  language^of  coiv- 
tracT^but  is  evidently  mandatory,  and  in  the  exercise  of  legislative 
power;  and  it  is  made  the  duty  ot'  the  company,  in  case  they  assent 
to  the  provisions  of  that  law,  to  pass  through  Cumberland,  Hagers- 
town,  and  Boonsborough ;  and  if  they  fail  to  do  so,  the  fine  of 
$1 ,000,000  is  unposed  as  a  punishment  for  the  offence.  And  apro- 
vision,  as  in  this  case^jthal^the  party  shall  forfeit  a  particular  sum, 
i^T^aKp-lTp^PisnTyt  perform  an  act  required  bv  law,  has  alwavs.  in 
the  construction  of  statutes,  been  regarded  not  as  a  contract  with 
the  delinquent  party,  but  as  the  punishment  for  an  offenc£.  Un- 
doubtedly, in  the  case  of  individuals,  the  word  forfeit  is  construed 
to  be  the  language  of  contract,  because  contract  is  the  only  mode  in 
which  one  person  can  become  liable  to  pay  a  penalty  to  another  for 
a  breach  of  duty,  or  the  failure  to  perform  an  obhgation.  Injlegis- 
lative  proceedings,  however,  the  construction  is  otherwise,  and  a 
forfeiture  is  always  to  be  regarded  as  a  punishment  inflicted  for  a 
violation  of  some  duty  enjoined  upon  the  party  by  law;  and  such, 
very  clearly,  is  the  meaning  of  the  word  in  the  act  m  question. 

In  this  aspect  of  the  case,  and  upon  this  construction  of  the  act  of 
Assembly,  we  do  not  understand  that  the  right  of  the  state  to  re- 
lease it  is  disputed.  Certainly  the  power  to  do  so  is  too  well  settled 
to  admit  of  controversy.  The  repeal  of  the  law  imposmg  the 
penalty  is  of  itself  a  remission.  .  .  . 

We  are,  therefore,  of  opinion,  that  the  law  of  1840,  hereinbefore 
mentioned,  did  not  impair  the  obhgation  of  a  contract,  and  that  the 
judgment  of  the  Court  of  Appeals  of  Maryland  must  be  affirmed. 


WEST   RIVER   BRIDGE    CO.    V.    DIX.  329 

WEST    RIVER   BRIDGE   CO.  v.  BlXetal 

Supreme  Court  of  the  United  States.     1848. 

[6  Howard,  507.]  ^ 

Error  to  the  Supreme  Court  of  Vennont  (16  Yt.  446). 

Webster  and  Collamer,  for  plaintiffs  in  error;  and  Phelps,  contra. 

Daxiel,  J.,  delivered  the  opinion  of  the  court.  .  .  .  Inthej'ear 
179.5,  the  plaintiffs  in  error  were,  by  act  of  the  legislature  of  Ver- 
mont, created  a  corporation,  and  invested  with  the  exclusive  privi- 
lege of  erecting  a  bridge  over  West  River,  -uithin  four  miles  of  its 
mouth,  and  wdth  the  right  of  taking  tolls  for  passing  the  same.  The 
franchise  granted  this  corporation  was  to  continue  for  one  hundred 
years,  and  the  period  originalh'  prescribed  for  its  duration  has  not 
yet  expired.  The  corporation  erected  their  bridge,  have  main- 
tained and  used  it,  and  enjoyed  the  franchise  granted  to  them  by 
law,  until  the  institution  of  the  proceeding  now  under  review.  .  .  . 

By  an  act  of  the  legislature  of  Vermont,  passed  November  19, 
1839,  it  is  declared,  that  "  whenever  there  shall  be  occasion  for  any 
new  highway  in  any  to^\^l  or  toA\Tis  of  this  state,  the  Supreme  and 
County  Courts  shall  have  the  same  power  to  take  any  real  estate, 
easement,  or  franchise  of  any  turnpike  or  other  corporation,  when 
in  their  judgment  the  public  good  requires  a  public  highway,  which 
such  courts  now  have,  by  the  laws  of  the  state,  to  lay  out  highways 
over  individual  or  private  property;  and  the  same  power  is  granted, 
and  the  same  rules  shall  be  observed,  in  making  compensation  to  all 
such  corporations  and  persons  whose  estates,  easement,  franchise, 
or  rights  shall  be  taken,  as  are  now  granted  and  provided  in  other 
cases."  Under  the  authority  of  these  statutes,  and  in  the  modes 
therein  prescribed,  a  proceeding  was  instituted  in  the  County  Court 
of  Windham,  upon  the  petition  of  Joseph  Dix  and  others,  in  which, 
by  the  judgment  of  that  court,  a  pubhc  road  was  extended  and 
established  between  certain  termini,  passing  over  and  upon  the 
bridge  of  the  plaintiffs,  and  convertmg  it  into  a  free  public 
highway.  By  the  proceedings  and  judgment  just  mentioned, 
compensation  was  assessed  and  awarded  to  the  plaintiffs  for  this 
appropriation  of  their  property,  and  for  the  consequent  extin- 
guishment of  their  franchise.  The  judgment  of  the  County  Court, 
having  been  carried  by  certiorari  before  the  Supreme  Court  of  the 
State,  was  by  the  latter  tribunal  affirmed.  .  .  . 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


330  THE  CONTRACT  CLAUSE. 

There  can  be  no  doubt  .  .  .  that  the  charter  of  incorporation 
,  .  .  formed  a  contract.  .  .  .  Yet  this  proposition,  though  taken 
as  a  postulate  on  both  sides,  determines  nothing  as  to  the  real 
merits.  .  .  .  True,  it  furnishes  a  guide  to  our  inquiries,  yet  leaves 
those  inquiries  still  open,  in  their  widest  extent,  as  to  the  real  posi- 
tion of  the  parties  with  reference  to  the  state  legislation  or  to  the 
Constitution.  Following  the  guide  thus  furnished  us,  we  will  pro- 
ceed to  ascertain  that  position.  No  state,  it  is  declared,  shall  pass 
a  law  impairing  the  obligation  of  contracts;  yet,  with  this  conces- 
sion constantly  yielded,  it  cannot  be  justly  disputed,  that  in  every 
political  sovereign  community  there  inheres  necessarily  the  right 
and  the  duty  of  guarding  its  own  existence,  and  of  protecting  and 
promoting  the  interests  and  welfare  of  the  community  at  large. 
This  power  and  this  duty  are  to  be  exerted  not  only  in  the  highest 
acts  of  sovereignty,  and  in  the  external  relations  of  governments; 
they  reach  and  comprehend  likewise  the  interior  polity  and  rela- 
tions of  social  life,  which  should  be  regulated  with  reference  to  the 
advantage  of  the  whole  society.  This  power,  denominated  the 
eminent  domaiii  of  the  state,  is,  as  its  name  imports,  paramountlo 
all  private  rights  vested  under  the  gxLyprnmpnt^  and  these  last  axe, 
by  necessary  implication,  held  in  suboj;dination  to  this  powerj,  and 
must  yield  in  every  instance  to  its  proper  exercise. 

THeConstitution  oT  the  UniLud  States,  although  adopted  by  the 
sovereign  states  of  this  Union,  and  proclaimed  in  its  o\vn  language 
to  be  the  supreme  law  for  their  government,  can,  by  no  rational 
interpretation,  be  brought  to  conflict  with  this  attribute  in  the 
states;  there  is  no  express  delegation  of  it  by  the  Constitution;  and 
it  would  imply  an  incredible  fatuity  in  the  states,  to  ascribe  to 
them  the  intention  to  relinquish  the  power  of  self-government  and 
self-preservation.  A  correct  view  of  this  matter  must  demonstra  te, 
moreover,  that  the  right  of  eminent  domain  in  government  in  no 
wise  interferes  with  the  mviolability  of  contracts:  that  the  mogt 
saflctunonTous  regard  for  the  one  is  pertectly  consistent  \\ith  tl^ 
posseljron  and  exercise  of  the  ottier. 

Under  every  established  government,  the  tenure  of  property  is 
derived  mediately  or  immediately  from  the  sovereign  power  of  the 
political  body,  organized  in  such  mode  or  exerted  in  such  way  as 
the  community  or  state  may  have  thought  proper  to  ordain.  It 
can  rest  on  no  other  foundation,  can  have  no  other  guarantee.  It 
is  owing  to  these  characteristics  only,  in  the  original  nature  of 
tenure,  that  appeals  can  be  made  to  the  laws  either  for  the  protec- 
tion or  assertion  of  the  rights  of  property.    Upon  any  other  hj^oth- 


WEST   RIVER    BRIDGE    CO.    V.    DIX.  331 

esis,  the  law  of  property  would  be  simply  the  law  of  force.  Now 
it  isundeniable,  that  the  iii  vestment  of  property  in  the  citizenbv 
tEe  govelmment,  whether  made  for  a  pecmiiary  consideration  or 
founded  on  conditions  of  civil  or  pohticaTduty,  is  a  contract  b"e- 
tween  the  state,  or  the  government^_acting:  as  its  agent,  and  the 
grantee:  and  both  the  parties  thprptn  arp  Iv^Vi^^^TnTLgQQ^faitErto 
fulfiUt.  But  into  all  contracts,  whether  made  between  states  and 
individuals  or  between  individuals  only,  there  enter  conditigns 
which  arise  not  out  of  the  literal  terms  of  the  contract  itself;  they 
are  superinduced  by  the  pre-existing  and  higher  authority  of  the 
laws  of  nature,  of  nations,  or  of  the  community  to  which  the  parties 
belong;  they  are  always  presumed,  and  must  be  presumed,  to  be 
kno^vn  and  recognized  by  all,  are  binding  upon  all,  and  need  never, 
therefore,  be  carried  into  express  stipulation,  for  this  could  add 
nothing  to  their  force.  Every  contract  is  made  in  subordination 
to  them,  and  must  yield  to  their  control,  as  conditions  inherent  and 
paramount,  wherever  a  necessity  for  their  execution  shall  occur. 
SucKHrcmidilloii  is  zhe  right  of  eminenTclomam._  This  nght  does 
not  operate  to  impair  the  contract  affecterl  by  it,  but. recognizes  its 
obligation  in  the  fullest  extent,  claiming  only  the  fulfilment  of  an 
es^tial]1nd  mseparable  conditiop  It  is  believed  that  the_ 

power^was  never,  or,  at  any  rate,  rarely,  questioned,  until  the 
opimonlseemis^tojave  obTained,  that  tlie  right  of  property  in  a 
chartered  corporation  was  more  sacred  and  intangible  than  the 
same  PgHFcould  possibly  tjcin  ttie  person  of  the  citizen;  an  opinion 
which  must  be  without  anygrounds  to  rest  upon,  uiitil  it  can  be 
demonstrated  either  that  the  ideal  creature  is  more  than  a  person, 
or  the  corporeal  being  is  less.  For,  as  a  question  of  the  power  to 
appropriate  to  public  uses  the  property  of  .private  persons,  resting 
upon  the  ordinary  foundations  of  private  right,  there  would  seem 
to  be  room  neither  for  doubt  nor  difficulty.  A  distinction  has  been 
attempted,  in  argument,  between  the  power  of  a  government  to 
appropriate  for  public  uses  property  which  is  corporeal,  or  may  be 
said  to  be  in  being,  and  the  like  power  in  the  government  to  resume 
or  extinguish  a  franchise.  The  distinction  thus  attempted  we 
regard  as  a  refinement  which  has  no  foundation  in  reason,  and  one 
that,  in  truth,  avoids  the  true  legal  or  constitutional  question  in 
these  causes;  namely,  that  of  the  right  in  private  persons,  in  the 
use  or  enjoyment  of  their  private  property,  to  control  and  actually 
to  prohibit  the  power  and  duty  of  the  government  to  advance  and 
protect  the  general  good.  We_are  aware  ofjiothing  peculiar  to  a 
franchise  which  can  class  itlngher,  or  render  it  more  sacred,  than 


332  THE  CONTRACT  CLAUSE. 

other  property.  ...  A  franchise,  therefore,  to  erect  a  bridge,  to 
c^onstruct  a  t6Ed,  to  keep  a  ferry,  and  to  collect  tolls  upon  them, 
granted  by  the  authority  of  the  state,  we  regard  as  occupying  the 
same  position,  with  respect  to  the  paramount  power  and  duty  of 
the  state  to  promote  and  protect  the  public  good,  as  does  the  right 
of  the  citizen  to  the  possession  and  enjoyment  of  his  land  under  his 
patent  or  contract  with  the  state,  and  it  can  no  more  interpose  any 
obstruction  in  the  way  of  their  just  exertion.  Such  exertion  we 
hold  to  be  not  within  the  inhibition  of  the  Constitution,  and  no 
violation  of  a  contract.  The  power  of  a  state,  in  the  exercise  of 
eminent  domain,  to  extinguish  immediately  a  franchise  it  had 
granted,  appears  never  to  have  been  directly  brought  here  for  ad- 
judication, and  consequently  has  not  been  heretofore  formally 
propounded  from  this  court;  but  in  England,  this  power,  to  the 
fullest  extent,  was  recognized  in  the  case  of  the  Governor  and  Com- 
pany of  the  Cast  Plate  Manufacturers  v.  Meredith,  4  Term  Re- 
ports, 794,  and  Lord  Kenyon,  especially  in  that  case,  founded 
solely  upon  this  power  the  entire  policy  and  authority  of  all  the 
road  and  cang,!  laws  of  the  kingdom.  .  .  .        Judgment  affirmed.^ 

McLean,  J.  .  .  .     With  these  explanations,  I  would  express  my 
concurrence  in  the  judgment  of  the  Court. 
Wayne,  J.,  delivered  a  dissenting  opinion. 


BALTIMORE     AND     SUSQUEHANNA     RAILROAD     CO. 
V.  NESBIT  and  GOODWIN 

Supreme  Court  of  the  United  States.     1851. 

[10  Howard,  395.]  ^ 

Error  to  the  County  Court  of  Baltimore  County,  Maryland. 

The  legislature  of  Maryland  by  a  law  of  1828  incorporated  the 
Baltimore  and  Susquehanna  Railroad  Company,  gave  to  it  the 
right  to  secure  condemnation  of  land  through  a  procedure  includ- 
ing an  inquisition  for  determining  value,  and  provided  that  "  such 

1  See  Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685  (1897); 
Offield  V.  N.  Y.,  N.  H.  &  H.  R.  Co.,  203  U.  S.  372  (1908);  Cincinnati  v.  Louis- 
ville &  Nashville  R.  Co.,  223  U.  S.  390  (1912).  —  Ed. 

2  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


BALTIMORE    &    SUSQUEHANNA   R.    CO.    V.    NESBIT.  ooo 

valuation,  when  paid  or  tendered  to  the  owner  .  .  .  shall  entitle 
the  company  to  the  estate  .  .  .  asfully  as  if  it  had  been  conveyed." 
In  1836  upon  the  application  of  the  company  such  an  inquisition 
was  had  as  to  certam  lands  belonging  to  Nesbit,  trustee  for  Good- 
win; and  in  1837  the  Court  of  Baltimore  County,  in  accordance  with 
the  procedure  prescribed  by  the  law  of  1828,  ratified  and  confirmed 
the  mquisition.  The  company  did  not  pay  or  tender  the  amount. 
At  the  session  for  1841  the  legislature  enacted  that  the  court  should 
set  aside  the  inquisition  condemning  these  lands,  and  direct  an  in- 
quisition de  novo.  In  1844  the  company  tendered  the  valuation, 
with  interest,  and  thereafter,  on  petition  of  Nesbit  and  Goodwon, 
the  court,  in  accordance  with  the  act  of  1841,  gave  judgment  setting 
aside  the  inquisition. 

Campbell  and  Yellot,  for  plaintiff  in  error;  and  Johnson,  contra. 

Daniel,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  Court  of  Baltimore  County  is  admitted  to  be  the  highest  hi 
the  state  in  which  a  decision  upon  this  matter  could  be  had,  there 
being  no  appeal  allowed  from  its  judgment. 

The  plaintiff  in  error  insists,  — 

1st.  That,  its  charter  being  a  contract  between  itself  and  the 
state,  the  act.  of  1841,  having  varied  that  contract  without  the 
assent  of  the  company,  was  a  law  impairing  the  obligation  of  a  con- 
tract, and  therefore  unconstitutional  and  void. 

2d.  That,  the  title  to  the  land  condemned  having  vested  by  the 
confirmation  of  the  inquisition,  and  the  tender  of  the  money  ante- 
rior to  the  judgment  of  the  Baltimore  County  Court  under  the  act 
of  1841,  this  act  of  the  legislature  is  unconstitutional,  because  it 
divests  vested  rights,  and  in  this  way  unpairs  the  obhgation  of 
contracts.  .  .  . 

Let  us  now  mquire  by  what  acts  to  be  performed  by  the  com- 
pany, and  at  what  period  of  time,  the  investiture  of  such  land  and 
other  property  in  them  was  to  become  complete,  —  what  condi- 
tions or  stipulations  were  unposed  on  the  plaintiff  in  error  as  neces- 
sary to  the  completion  of  their  contract.  ...  It  can  hardly  be 
questioned,  that,  without  acceptance  by  the  acts  and  in  the  mode 
prescribed,  the  company  were  not  bound;  that  it  they  had  been 
dissatisfied  with  the  estunate  placed  upon  the  land,  or  could  have 
procured  a  more  eligLbj£._site  for  the  location  of  their  road,  they 
would  have  been  at  hbertv"  before  such  acceptance  wholly  to  re- 
nounce the  inquisition.  The  proprietors  of  the  land  could  have  no 
authority  to  foprcp  thp  pnmpanv  mto  its  adoption.  ThjsJ^f^jiig  the 
case^  there  could  up  to  this  point  be  no  mutuahty,  and  hence  no  con- 


334  THE  CONTRACT  CLAUSE. 

tract,  even  in  the  constrained  and  compulsory  character  in  whjch 
iW'as  created  and  unposecrupon  the  proprietors  by  tlie  autliority 
of  the  statute.  .  .  .  ±  ive  years  after  this  inciuisition,  during  alL 
which  int^erval  this  company  neglects  or  omits  the  fulfilment  of  the 
essential  condition^on  performance  of  which  its  title  depended,  the 
legislature  again  interposes;  and  it  may  be  asked  in  what  respects 
thislnterposition  amounted  to  an  abrogation  or  variation  of  any 
contract  which  the  legislative  body  itself,  rather  than  the  proprie- 
tors of  the  land,  had  been  instrumental  in  making.  We  think  this 
interposition  in  no  respect  impaired  or  contravened  the  contract 
flflp^pd  to  have  been  previously  existing;  that  it  is  perfectly^ron- 
sistent  with  all  its  conditions,  and  leaves  the  parties  precisely  as 
they~stood  from  the  passage  of  the  charter,  and^  full  UbertTIo 
insist  upon  whatever  rights  or  interests  that  law  had  granted.  It 
divegted  noTrights  of  property^  because,  as  we  have  sho\\Ti,  none 
had  been  vested.  This  interv^ention  was  simply  the  award  ot'  a 
new  trial  of  the  proceedings  under  the  inquisition,  which  proceed- 
ings were  of  no  avail  as  a  judgment,  after  such  new  trial  was 
allowed.  This  intervention,  too,  was  the  exercise  of  power  by  the 
legislature  supposed  by  that  body  to  belong  legitimately  to  itself; 
whether  this  authority  was  strictly  legislative  or  judicial,  according 
to  the  distribution  of  power  in  the  state  government,  was  a  ques- 
tion rather  for  that  government  than  for  this  court  to  determine 

The  only  questions  presented  for  our  consideration,  the  only 
questions  we  have  authority  to  consider  here,  are:  —  1st,  Whether 
under  their  charter  of  incorporation  and  the  proceedings  therein 
directed,  and  which  have  been  had  in  pursuance  of  that  charter, 
the  plaintiff  in  error  has,  by  contract  with  the  state,  been  invested 
with  certain  perfect  absolute  rights  of  property  ?  And  2dly, 
Whether  such  contract,  if  any  such  existed,  has  been  impaired  by 
subsequent  legislation  of  the  state,  by  a  divestiture  of  those  rights  ? 
To  each  of  these  questions  we  reply  in  the  negative;  because,  as  has 
already  been  shouTi,  tlie  conditions  of  the  charter,  —  conditions 
indispensable  to  the  vesting  of  a  title  in  The  plaintifrin_er£ar,  — 
never  were  in  dueTime  and  in  good  faith  fulfilled ;_nor.  until  after 
tK^TTPry  trial  h.qd  been  ordered  by  thelegiskture,_Bi:etended^to^e 

comphed  with. .... 

Judgment  affirmed. 


BUTLER   V.    PENNSYLVANIA.  335 

BUTLER  and  others  v.  PENNSYLVANIA. 

Supreme  Court  of  the  United  States.     185L 

[10  Howard,  402.]  i 

Error  to  the  Supreme  Court  of  Pennsylvania. 

The  Commonwealth  of  Pennsylvania  brought  action  in  the  Com- 
mon Pleas  Court  of  Dauphin  County  against  Butler  and  others, 
Canal  Commissioners,  for  a  balance  alleged  to  be  due.  The  judge 
charged  the  jury  thus:  — 

"  The  defendants  were  appointed  Canal  Commissioners  for  the 
term  of  one  year,  commencing  on  the  first  day  of  February,  1843, 
at  which  time  their  compensation  was  fixed  by  law  at  four  dollars 
per  day.  On  the  18th  of  April,  1843,  the  legislature,  by  an  act 
entitled  '  An  Act  to  reduce  the  expenses,  and  provide  for  the  elec- 
tion of  Canal  Commissioners  '  (Pamphlet  Laws  of  1843,  p.  337), 
reduced  the  pay  of  Canal  Commissioners  from  four  to  three  dollars 
per  day.  The  Auditor-General  and  State  Treasurer  settled  the 
accounts  of  the  C^iial  Commissioners  in  pursuance  of  this  act.  The 
Canal  Commissioners  contend  that  this  act  is  unconstitutional,  so 
far  asTt  relates  to  reducing  their  pay  after  their  appointment  to 
office^  anci  this  is  tiic"only  question  that  is  presented  in  this  case. 
The  coTIrt  instrilctthe  jury  that  the  act  in  question  is  not  uncon- 
stitutional; and,  as  there  is  no  other  dispute,  they  should  find  for 
the  Commonwealth.  To  this  charge  the  defendants'  counsel 
excepts;  and  it  is  filed  at  their  request." 

Verdict  and  judgment  were  given  for  the  Commonwealth;  and 
on  writ  of  error  the  j  udgment  was  affirmed  by  the  Supreme  Court 
of  Pennsylvania. 

J.  M.  Porter,  for  plaintiffs  in  error;  and  Alricks,  contra. 

Daniel,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

The  grounds  on  which  tliis  court  is  asked  to  interpose  between 
the  judgment  on  behalf  of  the  state  and  the  plaintiffs  in  error  are 
these.  That  the  appointment  of  these  plaintiffs  by  the  Governor 
of  Pennsylvania,  under  the  law  of  January  28,  1836,  was  a  posi- 
tive obligation  or  contract  on  the  part  of  the  state  to  employ  the 
plaintiffs  for  the  entire  period  of  one  year,  at  the  stipulated  rate  of 
four  dollars  per  diem;  and  that  the  change  in  the  tenure  of  office 
and  in  the  rate  of  compensation  made  by  the  law  of  April  18, 
1843  (within  the  space  of  one  year  from  the  1st  of  February, 
1843),  was  a  violation  of  this  contract,  and  therefore  an  infraction 

1  The  reporter's  statement  ha.s  not  been  reprinted.  —  Ed. 


336  THE  CONTRACT  CLAUSE. 

of  the  tenth  section  of  the  first  article  of  the  Constitution  of  the 
United  States.  In  order  to  determine  with  accuracy  whether  this 
case  is  within  the  just  scope  of  the  constitutional  provision  which 
has  thus  been  mvoked,  it  is  proper  carefully  to  consider  the  charac- 
ter and  relative  positions  of  the  parties  to  this  controversy,  and  the 
nature  and  objects  of  the  transaction  which  it  is  sought  to  draw 
within  the  influence  of  that  provision.  .  .  . 

If  there  could  be  any  course  of  proceeding  more  than  all  others 
calculated  to  excite  dissatisfaction,  to  awaken  a  natural  jealousy 
on  the  part  of  the  states,  and  to  estrange  them  from  the  federal 
government,  it  would  be  the  practice,  for  shght  and  insufficient 
causes,  of  calling  on  those  states  to  justify,  before  tribunals  in  some 
sense  foreign  to  themselves,  their  acts  of  general  legislation.  And 
the  extreme  of  such  an  abuse  would  appear  to  exist  in  the  arraign- 
ment of  their  control  over  officers  and  subordinates  in  the  regula- 
tion of  their  internal  and  exclusive  polity;  and  "over  the  modes  and 
extent  m  which  that  polity  should  be  varied  to  meet  the  exigencies 
of  their  peculiar  condition.  Such  an  abuse  would  prevent  all  ac- 
tion in  the  state  governments,  or  refer  the  modes  and  details  of 
their  action  to  the  tribunals  and  authorities  of  the  federal  govern- 
ment. These  surely  could  never  have  been  the  legitimate  purposes 
of  the  federal  Constitution.  The  contracts  designed  to  be  pro- 
tected by  the  tenth  section  of  the  first  article  of  that  instrument  are 
contracts  by  which  perfect  rights,  certain  definite,  fixed  private 
rights  of  property,  are  vested.  These  are  clearly  distinguishable 
from  measures  or  engagements  adopted  or  undertaken  by  the  body 
pohtic  or  state  government  for  the  benefit  of  aii,  and  from  the  neces- 
sity of  the  case,  and  according  to  universal  understanding,  to  be 
varied  or  discontinued  as  the  public  good  shall  require.  The  selec- 
tion of  officers,  who  are  nothing  more  than  agents  for  the  effectuat- 
ing of  such  public  purposes,  is  matter  of  public  convenience  or 
necessity,  and  so  too  are  the  periods  for  the  appointment  of  such 
agents;  but  neither  the  one  nor  the  other  of  these  arrangements 
can  constitute  any  obUgation  to  continue  such  agents,  or  to  re- 
appoint them,  after  the  measures  which  brought  them  into  being 
shall  have  been  found  useless,  shall  have  been  fulfilled,  or  shall  have 
been  abrogated  as  even  detrimental  to  the  well-being  of  the  public. 
The  promised  compensation  for  services  actually  performed  and 
accepted,  during  the  continuance  of  the  particular  agency,  may 
undoubtedly  be  claimed,  both  upon  principles  of  compact  and  of 
equity;  but  to  insist  beyond  this  on  the  perpetuation  of  a  public 
poHcy,  either  useless  or  detrimental,  and  upon  a  reward  for  acts 


BUTLER   V.    PEXNSYLV.INIA. 


337 


neither  desired  nor  performed,  would  appear  to  be  reconcilable 
with  neither  common  justice  nor  common  sense.     The  establish- 
ment  of  such  a  principle^  would  arrest  necps>^Rr^lv  everything  Uke 
progress  or  improvement  in  government :  or  if_^changes  should  be 
ventured  upon,  the  government  would  have  tobecome  one  great 
pensioiTeslablishment  oriwnjch  to  quarter  a  host  of  smecures.~~It 
would-esxjmalt^rBe  dithcult,Tf  not  unpracticable,  ui  this  view,  ever 
to  remodel  the  organic  law  of  a  state,  as  constitutional  ordinances 
must  be  of  higher  authority  and  more  immutable  than  common 
legislative  enactments,  and  there  could  not  exist  conflicting  con- 
stitutional ordinances  under  one  and  the  same  system.     It  follows, 
then,  upon  principle,  that,  in  every  perfect  or  competent  govern- 
ment,  there  must  exist  a  general  power  to  enact  and  to  repeal 
lawsfancT  to  creafeTand  change  or  discontinue,  the  agents  des'ig- 
nated  fori  he  execution  of  those  laws.     Such  a  power  is  indispen- 
sable for  the  preservation  of  the  body  politic,  and  for  the  safety  of 
the  individuals  of  the  community.     It  is  true,  that  this  power,  or 
the  extent  of  its  exercise,  may  be  controlled  by  the  higher  organic 
law  or  constitution  of  the  state,  as  is  the  case  m  some  instances  in 
the  state  constitutions,  and  as  is  exemplified  ui  the  provision  of  the 
federal  Constitution  relied  on  in  this  case  by  the  plamtiffs  m  error, 
and  in  some  other  clauses  of  the  same  instrument;   but  where  no 
such  restriction  is  unposed,  the  power  must  rest  ui  the  discretion  of 
the  government  alone.      The  constitution  of  Pennsylvania  con- 
tains no  limit  upon  the  discretion  of  the  legislature,  either  ui  the 
augmentation  or  duninution  of  salaries,  with  the  exceptions  of 
those  of  the  Governor,  the  judges  of  the  Supreme  Court,  and  the 
presidents  of  the  several  courts  of  Common  Pleas.     The  salaries  of 
these  officers  cannot,  under  that  constitution,  be  dimuiished  duruig 
their  continuance  in  office.     Those  of  all  other  officers  in  the  state 
are  dependent  upon  legislative  discretion.      We  have  already 
sho^^-n,  that  the  appointment  to  and  the  tenure  of  an  office  created 
for  the  public^use,  and  the  regulation  ot  the  salary  affixed  to  such 
an  office,  do  not  i'all  withm  the  meaning  orthe.sprtioTl  of  the  con- 
stitution relied  on  by  the  plamtihs  m  error  rdonot  come  within  the 
hn-poltTTniHJ  imil  L'ontrms,  or,  m'other  wordsTthe^yf r^terl ,  private 
personal  rights  thereiaLintpnrlerl  To  De  protertpd.     They  are  func- 
tions appropriate  to  that  class  of  powers  and  obhgations  by  which 
governments  are  enabled,  and  are  called  upon,  to  foster  and  pro- 
mote the  general  good;   functions,  therefore,  which  governments 
cannot  be  presumed  to  have  surrendered,  if  mdeed  they  can  under 
any  circumstances  be  justified  in  surrenderkig  them.     This  doc- 


338  THE  CONTRACT  CLAUSE. 

trine  is  in  strictest  accordance  with  the  rulings  of  this  court  in 
many  instances,  from  amongst  which  may  be  cited  its  reasoning  in 
the  important  and  leading  case  of  The  Charles  River  Bridge  v. 
The  Warren  Bridge,  in  11  Peters's  Reports,  and  in  the  case  of  The 
State  of  Maryland  v.  The  Baltimore  and  Ohio  Railroad  Company, 
in  3  Howard's  Reports,  —  to  which  might  be  added  other  decisions 
upon  claims  to  monopoly,  as  ferry  privileges,  in  restraint  of  legisla- 
tive action  for  public  improvement  and  accommodation.  .  .  . 

Judgment  affirmed. 

McLean,  J. 

In  this  case,  I  think  we  have  no  jurisdiction.  There  was  no 
contract  which  could  be  impaired,  within  the  provision  of  the 
Constitution  of  the  United  States.  This  is  clearly  sho^^^l  in  the 
opinion  of  the  court.  In  such  a  case,  I  suppose  the  proper  entry 
would  be  to  dismiss  the  writ  of  error.  By  the  affirmance  of  the 
judgment  of  the  Supreme  Court  of  Pennsylvania,  we  take  juris- 
diction. 


BEERS  V.   ARKANSAS. 
Supreme  Court  of  the  United  States.     1858. 

[20  Howard,  527.]  i 

Error  to  the  Supreme  Court  of  Arkansas. 

An  action  of  covenant  was  brought  on  Nov.  21,  1854,  in  the  Cir- 
cuit Court  of  Pulaski  County,  to  recover  interest  on  bonds  issued 
by  the  state.  On  Dec.  7,  1854,  the  legislature  enacted  that,  in 
every  case  in  which  suit  had  been  instituted  against  the  state  for 
principal  or  interest  on  bonds  issued  by  the  state,  the  bonds  must  be 
filed  in  the  office  of  the  clerk  before  judgment  and  must  not  be 
withdra\VTi  until  final  determination  of  the  suit  and  payment  of  the 
bonds  and  all  interest,  and  that  in  case  this  were  not  done  the  court 
should  dismiss  the  suit.  The  state,  by  its  attorney,  without  plead- 
ing to  the  declaration,  moved  that  the  court  require  the  plaintiff  to 
file  the  bonds,  and  that,  if  the  bonds  should  not  be  filed,  the  court 
dismiss  the  suit.  The  court  so  ordered;  and  on  the  plaintiff's 
failing  to  file  the  bonds  the  court  dismissed  the  suit.  This  judg- 
ment was  affirmed  in  the  Supreme  Court  of  the  state  (17  Ark.  528). 

^  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


BEERS    V.    ARKANSAS.  339 

Pike,  for  plaintiff  in  error;  and  Hempstead,  cojitra. 
Taney,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 
The  error  assigned  here  is,  that  the  act  of  December  7,  1854, 
impaired  the  obligations  of  the  contracts  between  the  state  and  the 
plaintiff  in  error,  evidenced  by  and  contauied  in  each  of  the  said 
bonds,  and  the  endorsement  thereon,  and  was  therefore  null  and 
void,  under  the  Constitution  of  the  United  States. 

The  objection  taken  to  the  validity  of  the  act  of  Assembly  can- 
not be  maintained.  Itjg  an  a^  to  regulate  the  proceedings  and 
liniit  the^jurisdiction  oflFs  owTTcourts  in  suits  where  the  state 'is  a 

party  defendant  and  nothing  more^  '  ~ 

Ifis  an  established  principle  of  jurisprudence  in  all  civihzed 
nations  that  the  sovereign  cannot  be^ued  in  \ti,  pwn  ^nnrtg^  qj- jr> 
any  other^_withount3^nsent  anf|  pprmissinn;  biat,  it  may^  if  it 
thinks  proper,  w-aive  this  privilege,  and  permit  itself  to  be  made  a 
defendant  in  a  suit  by  ipdividnal^,  nr  hy  anMtT^pr  cf^t^  Anri  as 
this  permission  is  altogether  voluntary  on  the  part  ^of  the  sover- 
eignty:^, follows  4hat  it^may  proooribr  the  trmr^  anH  nnnrliti/^Tis  on 
whichjj.consemsT?VT)e^siipd,  nrid  thn  mfinnrr  in  Tirhirh  thn  niiL^li.ill 
be  confiuctnd.  .n.nd  m.iv3withdrfl\y  its  present  whenever  it  mav 
suppose^that  justice  to  the  pubhc  requires  it. 

Arlcansas,  by  its  constitution,  so  far  waived  the  privilege  of  sov- 
ereignty as  to  authorize  suits  to  be  instituted  against  it  in  its  own 
courts,  and  delegated  to  its  General  Assembly  the  power  of  direct- 
ing in  what  courts,  and  in  what  manner,  the  suit  might  be  com- 
menced. And  if  the  law  of  1854  had  been  passed  before  the  suit 
was  instituted,  v>-e  do  not  understand  that  any  objection  would 
have'Been  made  to  iT  I'he  objection  is,_th«t  it  wa^  Da_ss"ecl  after 
this  suit  was  instituted,  and  contained  regulations  with  which  the 
plaintiff  could  not  conveniently  comply.  But  the  prior  law  was 
not^a^onlract!  It  was^an  ordinary  act  of  legislation,  prescribing 
the  conditions  upon  which  the  state  consented  to  waive  the  privi- 
lege_^f  sovereignty.  It  contained  no  stipulation  that  these  regu- 
la^ion££hould  not  be  modified  afterwards,  if,  upon  experience,  it 
was  found  tnat  lurtner  provisionrwere  necessary  to  protect  the 
public  interest;  and  no  such  contract  can  be  implied  from  the  law, 
nor  can  this  court  inquire  whether  the  law  operated  hardly  or  im- 
justly  upon  the  parties  whose  suits  were  then  pending.  That  was 
a  question  for  the  consideration  of  the  legislature.  They  might 
have  repealed  the  prior  law  altogether,  and  put  an  end  to  the  juris- 
diction of  their  courts  in  suits  against  the  state,  if  they  had  thought 
proper  to  do  so,  or  prescribe  new  conditions  upon  which  the  suits 


340  THE  CONTRACT  CLAUSE. 

might  still  be  allowed  to  proceed.  I;i_exercismgjthis  Intter  pmv^ r^ 
the  state  violated  no  contract  with  the  parties ;  it  merely  regulated 
the  proceedings  initsown  courts,  and  limited  the  jurisdiction  it  had 
before  conferred  in  suits  wEen  the  staEe^  consented  to  be~a  party 

defendant.  .  .  . . 

The  writ  of  error  must  therefore  be  dismissed,  for  want  of  juris- 
diction in  this  court.  .  .  .^ 


Rector,  Churchwardens,  and  Vestrymen  of  CHRIST  CHURCH 
V.  COUNTY   OF   PHILADELPHIA. 

Supreme  Court  of  the  United  States.     1861. 
[24  Howard,  300.] 

This  case  was  brought  up  from  the  Supreme  Court  of  the  State 
of  Pennsylvania  by  a  writ  of  error  issued  under  the  25th  section  of 
the  Judiciary  act. 

The  facts  of  the  case  are  stated  in  the  opinion  of  the  court,  and 
also  the  decision  of  the  Supreme  Court  of  Pennsylvania,  which  was 
alleged  to  be  in  conflict  with  the  Constitution  of  the  United  States. 

McCall  and  Reverdy  Johnson,  for  plaintiffs  in  error;  and  King, 
contra. 

The  first  point  of  the  counsel  for  the  plaintiffs  in  error,  viz.,  that 
a  legislature  had  power  to  exempt~property  permanently I'rorp 
tkxation,  was  not  contested  by  the  other  side;  but  the  argument 
was,  whether  the  reason  given  for  exemptuiff  the  property  was  a 
legal  consideration  of  a  contract  or  only_a  motive^alleged  for  pass- 
ing the  laws.  Upon  tliis  question  many  authorities  were  cited  on 
both  sides". 

Campbell,  J.,  dehvered  the  opinion  of  the  court. 

This  cause  comes  before  this  court  upon  a  writ  of  error  to  the 
Supreme  Court  of  Pennsylvania,  under  the  25th  section  of  the  act 
of  Congress  of  the  24th  September,  1789.  In  the  year  1833  the 
Legislature  of  Pennsylvania  passed  an  act  which  recited  "  that 
Christ  Church  Hospital,  in  the  city  of  Philadelphia,  had  for  many 
years  afforded  an  asylum  to  numerous  poor  and  distressed  widows, 

1  See  Railroad  Co.  v.  Tennessee,  101  U.  S.  337  (1880).  —  Ed. 


CHEIST    CHURCH    V.    PHILADELPHIA.  341 

who  would  probably  else  have  become  a  pubhc  charge;  and  it  be- 
ing represented  that  in  consequence  of  the  decay  of  the  buildings  of 
the  hospital  estate,  and  the  increasing  burden  of  taxes,  its  means 
are  curtailed,  and  its- usefulness  limited,"  they  enacted,  "  that  the 
real  property,  includmg  ground  rents,  now  belonging  and  payable 
to  Christ  Church  Hospital,  in  the  city  of  Philadelphia,  so  long  as  the 
same  shall  continue  to  belong  to  the  said  hospital,  shall  be  and  re- 
mam  free  from  taxes." 

In  the  year  1851  the  same  authority  enacted  "  that  all  property, 
real  and  personal,  belonging  to  any  association  or  incorporated 
company  which  is  now  by  law  exempt  from  taxation,  other  than 
that  which  is  in  the  actual  use  and  occupation  of  such  association 
or  incorporated  company,  and  from  which  an  income  or  revenue  is 
derived  by  the  o^Miers  thereof,  shall  hereafter  be  subject  to  taxa- 
tion in  the  same  manner  and  for  the  same  purposes  as  other  prop- 
erty is  now  by  law  taxable,  and  so  much  of  any  law  as  is  hereby 
altered  and  supplied  be  and  the  same  is  hereby  repealed."  It  was 
decided  in  the  Supreme  Court  of  Pennsylvania,  that  the  exemption 
conferred  upon  these  plaintiffs  by  the  act  of  1833  was  partially  re- 
pealed by  the  act  of  1851,  and  that  an  assessment  of  a  portion  of 
their  real  property  under  the  act  of  1851  was  not  repugnant  to  the 
Constitution  of  the  United  States,  as  tending  to  impair  a  legislative 
contract  they  alleged  to  be  contained  in  the  act  of  Assembly  of 
1833  aforesaid. 

The  plaintiffs  claim  that  the  exemption  conceded  bythe  acl_QL 
1833  is  perpetual,  and  that  the  act  itself  is  in  effect  a  contract.  This 
C(5Hre5STOTrorTHeTegislature  was  spontaneous,  and  no  service  or 
duty,  or  other  remunerative  condition,  was  imposed  on  the  cor- 
poration. It  belongs  to  the  class  of  laws  denominated  privilegia 
favor abilia.  It  attached  only  to  such  real  property  as  belonged  to 
the  corporation,  and  while  it  remained  as  its  property;  but  it  is  not 
a  necessary  implication  from  these  facts  that  the  concession  is  per- 
petual, or  was  designed  to  continue  during  the  corporate  existence. 

Such  an  interpretation  is  not  to  be  favored,  as  the  power  of  taxa- 
tion  JsHeT^^sary  Lu  llit^  existence  of  the  state,  and  must  be  exerted 
accordmg  to  the  varying  conditions  of  the  commonwealth.  The 
act  of  1833  belongs  to  a  class  of  statutes  m  which  the  narrowest 
meaning  is  to  be  taken  which  w\\\  fairly  carry  out  the  intent  of  the 
legislature.  All  laws,  all  poHtical  institutions,  are  dispositions 
for  the  future,  and  their  professed  object  is  to  afford  a  steady  and 
permanent  security  to  the  interests  of  society.  Bentham  says, 
"  that  all  laws  may  be  said  to  be  framed  with  a  ^^ew  to  perpetuity; 


342  THE  CONTRACT  CLAUSE. 

but  perpetual  is  not  synonymous  to  irrevocable;  and  the  principle 
on  which  all  laws  ought  to  be,  and  the  greater  part  of  them  have 
been  established,  is  that  of  defeasible  perpetuity- — a  perpetuity 
defeasible  by  an  alteration  of  the  circumstances  and  reasons  on 
which  the  law  is  founded."  The  ind^ucements  that  moved  the 
legislature  to  concede  the  favor  contained  jnjbhe  act^ofJ^SSTare 
special,  and  were  probably  temporary  in  their  operation.  The 
usefuhiess  of  the  corporation  had  been  curtailed  in  consequence  of 
the  decay  of  their  buildings  and  the  burden  of  taxes. 

It  may  be  supposed  that  in  eighteen  years  the  buildings  would  be 
renovated,  and  that  the  corporation  would  be  able  afterwards  to 
sustain  some  share  of  the  taxation  of  the  slate.  The  act  of  1851 
embodies  the  sense  of  the  legislature  to  this  effect. 

Tt  is  in  the  natiu'e  of  such  aj^rW^^f^frr^  hs  the  act  oM833  confers, 
that  it  exists  bene  placitum,  and  may  be  revoked  at  thepleasure  of 
the~sbvereign.  "^ 

'Such  was  the  conclusion  of  the  courts  ui  Commonwealth  v.  Bird, 
12  Mass.,  442;  Dale  v.  Governor,  3  Stew.,  387;  Alexander  v.  Will- 
ington,  2  Russ.  and  M.,  35;  12  Harris,  232;  Lindley's  Jurisp.,  sec. 
42. 

It  is  the  opinion  of  the  court  that  there  is  no  error  in  the  judg- 
ment of  the  Supreme  Court,  within  the  scope  of  the  writ  to  that 
court,  and  its  judgment  is  affirmed.^ 


GELPCKE  et  al.  v.  DUBUQUE. 

Supreme  Court  of  the  United  States.     1864. 

[1  Wallace,  175.]  = 

Error  to  the  District  Court  of  the  United  States  for  the  District 
of  Iowa. 

Action  was  brought  agauist  the  city  of  Dubuque,  Iowa,  on  the 
interest  coupons  attached  to  bonds,  dated  July  1,  1857,  due  in 
twenty  years,  and  issued  by  the  city,  as  the  bonds  recited,  "  ui  con- 
sideration "  of  stock  in  the  Dubuque  Western  Railroad  Company 
and  "  in  accordance  with  the  Code  of  Iowa  and  an  act  of  the  Gen- 

1  Compare  Home  of  the  Friendless  v.  Rouse,  8  Wall.  430  (1869).  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


GELPCKE    V.    DUBUQUE.  343 

eral  Assembly  of  the  State  of  Iowa  of  January  28,  1857."  The 
defence  was,  ui  effect,  that  both  ui  purpose  and  in  amount  the 
issuing  of  the  bonds  conflicted  with  the  Iowa  Constitution  of  1846, 
art.  1,  sect.  6,  art.  3,  sect.  1,  art.  7,  and  art.  8,  sect.  2,  and  that  the 
constitutional  provisions  invalidated  the  statutes  which  professed 
to  authorize  the  bonds.  The  question  w^as  raised  by  demurrer  to 
the  answer;  and,  the  demurrer  being  overruled,  the  District  Court 
entered  judgment  for  the  city. 

S.  V.  White  and  Allison,  for  the  bondholders;  and  Bissell,  for  the 
city. 

SwAYXE,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

By  these  enactments,  if  they  are  vahd,  ample  authority  was 
given  to  the  city  to  issue  the  bonds  in  question.  The  city  acted 
upon  this  authority.  .  .  . 

Wliere  there  is  no  defect  of  constitutional  power,  such  legislation, 
in  cases  like  this,  is  valid.  .  .  . 

It  is  claimed  "  that  the  legislature  of  Iowa  had  no  authority 
imder  the  constitution  to  authorize  municipal  corporations  to  pur- 
chase stock  in  railroad  companies,  or  to  issue  bonds  m  payment  of 
such  stock."  .  .  .  Our  attention  has  been  called  to  .  .  .  provi- 
sions of  the  constitution  of  the  state.  .  .  . 

All  these  objections  have  been  fully  considered  and  repeatedly 
overruled  by  the  Supreme  Court  of  Iowa:  Dubuque  Co.  v.  The 
Dubuque  &  Pacific  R.  R.  Co.  (4  Greene,  1);  The  State  v.  Bissell  (4 
Id.  328);  Clapp  v.  Cedar  Co.  (5  Iowa,  15);  Ring  v.  County  of 
Johnson  (6  Id.  265) ;  McMillen  v.  Boyles  (6  Id.  304) ;  McAIillen 
V.  The  Comity  Judge  of  Lee  Co.  (6  Id.  393) ;  Games  v.  Robb  (8  Id. 
193) ;  State  v.  The  Board  of  Equalization  of  the  County  of  Johnson 
(10  Id.  157).  The  earhest  of  these  cases  was  decided  in  1853,  the 
latest  in  1859.  The  bonds  were  issued  and  put  upon  the  market 
between  the  periods  named.  These  adjudications  cover  the  entire 
ground  of  this  controversy.  They  exhaust  the  argument  upon  the 
subject.  We  could  add  nothmg  to  what  they  contain.  We  shall 
be  governed  by  them,  unless  there  be  something  which  takes  the 
case  out  of  the  established  rule  of  this  court  upon  that  subject. 

It  is  urged  that  all  these  decisions  have  been  overruled  by  the 
Supreme  Court  of  the  state,  in  the  later  case  of  the  State  of 
Iowa,  ex  relatione,  v.  The  County  of  Wapello  (13  Iowa,  390),  and  it 
is  insisted  that  in  cases  involving  the  construction  of  a  state  law  or 
constitution,  this  court  is  bound  to  follow  the  latest  adjudication  of 
the  highest  court  of  the  state.  Leffingwell  v.  Warren  (2  Black,  599) 
is  relied  upon  as  authority  for  the  proposition.     In  that  case  this 


344  THE  CONTRACT  CLAUSE, 

court  said  it  would  follow  "  the  latest  settled  adjudications." 
Whether  the  judgment  in  question  can,  under  the  circumstances,  be 
deemed  to  come  within  that  category,  it  is  not  now  necessary  to 
determine.  It  cannot  be  expected  that  this  court  will  follow  every 
such  oscillation,  from  whatever  cause  arising,  that  may  possibly 
occur.  The  earlier  decisions,  we  think,  are  sustained  by  reason  and 
authority.  They  are  in  harmony  Avith  the  adjudications  of  sixteen 
states  of  the  Union.  Many  of  the  cases  in  the  other  states  are 
marked  by  the  profoundest  legal  ability. 

The  late  case  in  Iowa,  and  two  other  cases  of  a  kindred  character 
in  another  state,  also  overruling  earlier  adjudications,  stand  out,  as 
far  as  we  are  advised,  in  imenviable  solitude  and  notoriety.  How- 
ever we  may  regard  the  late  case  in  Iowa  as  affecting  the  future,  it 
can  have  no  effect  upon  the  past.  "  The  sound  and  true  rule  is. 
that  if  the  contract,  when  made,  was  valid  bv  the  1'^^^^^  "^  ^^'^  ptntft 
as  then  expounded  bv  all  departments  of  the  government,  and  ad- 
ministeredjnjts  courts  of  justice,  its  validity  and  obligation  cannot 
be  impairedbvanv  subsequent  action  of  legislation,  or  dppisiion  nf 
its  courts  altering  the  construction  of  the  law."  (The  Ohio  Life  & 
Trust  Co.  V.  Debolt,  16  Howard,  432.)       ~ 

The  same  principle  applies  where  there  is  a  change  of  judicial 
decision  as  to  the  constitutional  power  of  the  legislature  to  enact 
thelawl  To  this  rule,  thus  enlarged,  Ave  adhere.  It  is  the  laAV  of 
this~ court.  It  rests  upon  the  plamest  principles  of  justice.  To 
hold  otherwise  would  be  as  imjust  as  to  hold  that  rights  acquired 
under  a  statute  may  be  lost  by  its  repeal.  The  rule  embraces  this 
case.  .  .  . 

We  are  not  unmindful  of  the  importance  of  uniformity  in  the 
decisions  of  this  court,  and  those  of  the  highest  local  courts,  giving 
constructions  to  the  laAvs  and  constitutions  of  their  OAvn  states.  It 
is  the  settled  rule  of  this  court  in  such  cases,  to  follow  the  decisions 
of  the  state  courts.  But  there  have  been  heretofore,  in  the  judicial 
history  of  this  court,  as  doubtless  there  will  be  hereafter,  many 
exceptional  cases.  We  shall  never  immolate  truth,  justice,  and  the 
laAv,  because  a  state  tribunal  has  erected  the  altar  and  decreed  the 
sacrifice. 

The  judgment  below  is  reversed,  and  the  cause  remanded  for 
further  proceedings  in  conformity  to  this  opinion. 

Miller,  J.,  dissenting.  .  .  . 

Thus  we  are  to  have  two  courts,  sitting  within  the  same  jurisdic- 
tion, deciding  upon  the  same  rights,  arising  out  of  the  same  statute, 


GELPCKE   V.    DUBUQUE.  345 

yet  always  arriving  at  opposite  results,  with  no  common  arbiter  of 
their  differences.  There  is  no  hope  of  avoiding  this,  if  this  court 
adheres  to  its  ruling.  For  there  is  in  this  court  no  power,  in  this 
class  of  cases,  to  issue  its  writ  of  error  to  the  state  court,  and  thus 
compel  a  uniformity  of  construction,  because  it  is  not  pretended 
that  either  the  statute  of  Iowa,  or  its  constitution,  or  the  decision 
of  its  courts  thereon,  are  in  conflict  with  the  Constitution  of  the 
United  States,  or  any  law  or  treaty  made  under  it.  .  .  . 

The  general  principle  is  not  controverted  by  the  majority,  that 
to  the  highest  courts  of  the  state  belongs  the  right  to  construe  its 
statutes  and  its  constitution,  except  where  they  may  conflict  with 
the  Constitution  of  the  United  States,  or  some  statute  or  treaty 
made  under  it.  Nor  is  it  denied  that  when  such  a  construction 
has  been  given  by  the  state  court,  that  this  court  is  bound  to  follow 
it.  .  .  . 

The  only  special  charge  which  this  court  has  over  contracts, 
beyond  any  other  court,  is  to  declare  judicially  whether  the  statute 
of  a  state  impairs  their  obligation.  No  such  question  arises  here, 
for  the  plaintiff  claims  under  and  by  virtue  of  the  statute  which  is 
here  the  subj  ect  of  discussion.  Neither  is  there  any  cjuestion  of  the 
obligation  of  contracts,  or  the  right  to  enforce  them.  The  question 
goes  behind  that.  We  are  called  upon,  not  to  construe  a  contract, 
nor  to  determine  how  one  shall  be  enforced,  but  to  decide  whether 
there  ever  was  a  contract  made  in  the  case.  To  assume  that  there 
was  a  contract,  which  contract  is  about  to  be  violated  by  the  deci- 
sions of  the  state  court  of  Iowa,  is  to  beg  the  very  question  in  dis- 
pute. In  deciding  this  question  the  court  is  called  upon,  as  the 
court  in  Iowa  was,  to  construe  the  constitution  of  the  state.  It  is 
a  grave  error  to  suppose  that  this  court  must,  or  should,  determine 
this  upon  any  principle  which  would  not  be  equally  binding  on  the 
courts  of  Iowa,  or  that  the  decision  should  depend  upon  the  fact 
that  certain  parties  had  purchased  bonds  Avhich  were  supposed  to 
be  valid  contracts,  when  they  really  were  not. 

The  Supreme  Court  of  Iowa  is  not  the  first  or  the  only  court 
which  has  changed  its  rulings  on  questions  as  important  as  the  one 
nqw  presented.  I  understand  the  doctrine  to  be  in  such  cases,  not 
that  the  law  is  changed,  but  that  it  was  always  the  same  as  ex- 
pounded by  the  later  decision,  and  that  the  former  decision  was 
not,  and  never  had  been,  the  law,  and  is  overruled  for  that  very 
reason.  The  decision  of  this  court  contravenes  this  principle,  and 
holds  that  the  decision  of  the  court  makes  the  law,  and  in  fact,  that 


346  THE  CONTRACT  CLAUSE. 

the  same  statute  or  constitution  means  one  thing  in  1853,  and  an- 
other thing  in  1859.  For  it  is  impUedly  conceded,  that  if  these 
bonds  had  been  issued  shice  the  more  recent  decision  of  the  Iowa 
court,  this  court  would  not  hold  them  valid.  .  .  . 


HAWTHORNE  v.   CALEF. 

Supreme  Court  of  the  United  States.     1865. 

[2  Wallace,  10.]  ^ 

Error  to  the  Supreme  Court  of  Maine. 

HaT\ihome,  havuig  supphed  a  railroad  corporation  of  Maine 
with  materials  and  having  obtained  a  judgment  agauist  the  corpor- 
ation and  having  been  unable  to  get  satisfaction,  brought  action 
against  a  stockholder,  Calef,  ui  reliance  upon  provisions  of  the 
charter  that  shares  of  individual  stockholders  should  be  liable  for 
debts  of  the  corporation,  and  that  in  case  of  deficiency  of  attachable 
corporate  property  the  individual  property  of  any  stockholder 
should  be  liable  to  the  amount  of  his  stock  for  debts  of  the  corpora- 
tion and  might  be  taken  in  execution  on  a  judgment  against  the 
corporation,  and  that  the  creditor  after  judgment  against  the  cor- 
poration should  have  the  option  of  an  action  on  the  case  against 
any  stockholder  for  the  purpose  of  takuig  his  property  on  execution 
to  an  extent  not  beyond  the  amount  of  his  stock.  After  the  debt 
was  contracted,  the  legislature  passed  a  statute  repealing  the  mdi- 
..jj^^^^^_Ho].i]it3r  Pinn^P  nt'l^  oWtpr.  The_Su£rem£_Court, of 
TCTaine  upheld  this  repeal  and  gave  mdgment  n.coorrjingly. 

"Vurhs,  for  plamtiff  m  error;  and  Shepley,  contra. 

Nelson,  J.,  dehvered  the  opinion  of  the  court. 

The  question  upon  the  provisions  of  the  charter  of  the  railroad 
company  —  in  comiection  with  the  sale  of  the  property  by  the 
plaintiff  to  the  corporation,  out  of  which  this  debt  accrued  —  is, 
whether  a  contract,  express  or  imphed,  existed  between  him  and 
the  stockholder  ? 

It  is  asserted,  in  behalf  of  the  latter,  that  a  contract  existed  only 
between  the  creditors  and  the  corporation;  and  that  the  obhgation 

J-The  reporter's  statement  has  not  been  reprinted.  Neither  that  statement 
nor  the  opinion  indicates  the  procedure  in  the  state  comts.  —  Ed. 


HAWTHORNE    V.    CALEF.  347 

of  the  stockholder  rests  entirely  upon  a  statutory  liability,  destitute 
of  any  of  the  elements  of 'a  contract. 

Without  stopping  to  discuss  the  question  upon  the  clause  of  the 
statute,  we  thmk  that  the  case  falls  within  the  principle  of  Wood- 
ruff V.  Trapnal  (10  Howard,  190),  and  Curran  v.  State  of  Arkansas 
(15  Id.  304)  heretofore  decided  in  this  court. 

In  the  first  of  these  cases,  the  charter  of  the  bank  provided  that 
the  bills  and  notes  of  the  institution  should  be  received  in  all  pay- 
ment of  debts  due  to  the  state.  The  bank  was  chartered  2d 
November,  1836.  On  the  10th  January,  1845,  this  provision  was 
repealed,  and  the  question  was,  whether  or  not,  after  this  repeal,  the 
bills  and  notes  of  the  bank,  outstanding  at  the  time,  were  receivable 
for  debts  due  to  the  state.  The  court  held,  after  a  very  full  exami- 
nation, that  the  clause  in  the  charter  constituted  a  contract  with 
the  holders  of  the  bills  and  notes  on  the  part  of  the  state,  and  that 
the  repealing  act  was  void  as  impairing  the  obligation  of  the  con- 
tract. 

In  the  second  case,  the  charter  of  the  bank  contained  a  pledge  or 
assurance  that  certain  funds  deposited  therein  should  be  devoted  to 
the  payment  of  its  debts.  It  was  held  by  the  court,  that  this 
constituted  a  contract  with  the  creditors,  and  that  the  acts  of  the 
legislature  withdrawing  these  funds  were  void,  as  impairing  the 
obhgation  of  the  contract. 

Now,  it  is  quite  clear  that  the  personal  liability  clause  in  the  char- 
ter, in  the__present  c^se,  pledges  the  liability  or  guarantee  of  the 
stockholders,  to  theextent  of  their  stock,  to^  the  crerlitors  ofthe 
conipany,  and  to  which  pledge  or  guarantee  the  stockholders,  by 
subscribing  for  stock  and  becoming  members  of  it,  have  assented. 
They  thereby  virtually..a£ree  to  hernme  security  to  the  creditors 
for  tlie  payment  of  the  debts  of  the  company,  which  hn  yp  bppn  con 
tracted  upon  the  faith  of  this  liability.  .  .  . 

There  is  another  view  of  The  case,  involving  a  violation  of  the 
principal  contract  between  the  creditors  and  the  corporation, 
which  we  think  equally  conclusive  against  ths  judgment  of  the 
court  below.  This  view  rests  upon  a  principle  decided  in  Bronson 
V.  Kinzie  (1  Howard,  311),  and  the  several  subsequent  cases  of  this 
class.  .  .  .  Now,  appljang  the  principle  of  this  class  of  cases  to  the 
present  one,  by  the  clause  in  the  charter  subjectmg  the  property  of 
the  stockholder,  he  becomes  liable  to  the  creditor,  m  case  of  the  In- 
ability or  msolvency  of  the  company  for  its  debts,  to  the  extent  of 
his  stock.  The  creditor  had  this  security  when  the  debt  was  ogp- 
tracted^with  the  company  over  and  above  its  responsibility.     This 


348  THE  CONTRACT  CLAUSE. 

reinedythejepealhig  act  has  not  merelymodified  to  theprej  udice 
of  the  creditor,  but  hasal^gether-aboIisKea^Iandthereb^^ 
the  oWigaifron  of  Mjontract  with  the  company. 

We  are  of  opinion~upon  both  of  the  grounds  above  recited,  that 
the  court  below  erred.  '  ^dMgment  reversed} 


VON   HOFFMAN  v.   CITY   OF  QUINCY. 

Supreme  Court  of  the  United  States.     1867. 

[4  Wallace,  535.]  ^ 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Illinois. 

Von  Hoffman,  owner  of  interest  coupons  which  had  been  at- 
tached to  bonds  of  the  city  of  Quincy,  obtained  a  judgment  upon 
the  coupons.  An  execution  was  issued,  and  was  returned  misatis- 
fied.  Thereupon  he  prayed  that  a  writ  of  mandamus  be  issued, 
commanding  the  city  and  its  proper  officers  to  levy  a  special  tax 
sufficient  to  pay  that  judgment  and  costs,  in  accordance  with  acts 
of  the  Illinois  legislature  in  1851,  1853,  and  1857,  under  which  the 
bonds  were  issued  for  railroad  purposes,  and  by  which  the  city  was 
authorized  to  collect  a  special  annual  tax  sufficient  to  pay  the  m- 
terest  upon  bonds  issued  for  railroad  purposes  and  was  required  to 
apply  the  proceeds  to  no  other  purpose  whatsoever.  The  city's 
'answer  relied  upon  an  act  of  the  legislature  m  1863,  forbidding  a 
tax  of  more  than  fifty  cents  on  each  hundred  dollars  and  repealing 
conflicting  acts,  and  averred  in  effect  that  the  amount  to  be  realized 
by  the  new  rate  would  not  exceed  current  expenses.  On  demurrer 
to  the  answer,  judgment  was  given  for  the  city. 

McKinnon  and  Merrick,  for  the  plaintiff  in  error;  and  Gushing 
and  Ewing,  contra. 

SwAYNE,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

TViP  laws  which  subsist  at  the  time  and  place  of  the  making^of  a 
contract,  and  where  it  is  to  be  performer] .  entefiajo  and  forni  a  part 
of  it,  as  if  they  were  expressly  referred  to  or  incorporated  m  its 

1  Compare  Pittsburg  Steel  Co.  v.  Baltimore  Equitable  Society,  226  U.  S.  455 
(1913).  — Ed. 

2  The  reporter's  statement  has  not  been  reprmted.  —  Ed. 


\ 


VON    HOFFMAN    V.    QUINCY.  349 

terms.  This  principle  embraces  alike  those  which  affect  its  vaUcl- 
ify,  construction,  discharge,  and  enforcement.  Illustrations  of 
this  proposition  are  found,  in  the  obUgation  of  the  debtor  to  pay 
interest  after  the  maturity  of  the  debt,  where  the  contract  is  silent; 
in  the  liability  of  the  drawer  of  a  protested  bill  to  pay  exchange  and 
damages,  and  in  the  right  of  the  drawer  and  indorser  to  require 
proof  of  demand  and  notice.  These  are  as  much  incidents  and  con- 
ditions of  the  contract  as  if  they  rested  upon  the  basis  of  a  distinct 
agreement.  Green  v.  Biddle,  8  Wheat.  92;  Bronson  v.  Kinzie,  1 
How.  319';  McCracken  v.  Hayward,  2  Id.  612;  People  v.  Bond,  10 
Cal.  570;  Ogden  v.  Saunders,  12  Wheat.  231.  ..  .     ^ 

A  statute  of  frauds  embracing  a  pre-existing  parol  contract  nut 
before  required  to  be  in  writing  would  affect  its  validity.  A  statute 
declarmg  that  the  word  ton  should  thereafter  be  held,  in  prior  as 
well  as  subsequent  contracts,  to  mean  half  or  double  the  weight 
before  prescribed,  would  affect  its  construction.  A  statute  pro- 
viding that  a  previous  contract  of  indebtment  may  be  extinguished 
by  a  process  of  bankruptcy  would  involve  its  discharge,  and  a 
statute  forbidding  the  sale  of  any  of  the  debtor's  property,  under  a 
judgment  upon  such  a  contract,  would  relate  to  the  remedy. 

It  cannot  be  doubted,  either  upon  principle  or  authority,  that 
each  of  such  laws  passed  by  a  state  would  impair  the  obligation  of 
the  contract,  and  the  last-mentioned  not  less  than  the  first.  No- 
thing  can  be  more  material  to  the  obligation  than  the  means  of  en- 
forcement. WlTh61it  Th^  remedy  tne  contract  may,  indeed,  in  the 
sense  of  the  law,  be  said  not  to  exist,  and  its  obligation  to  fall  within 
the  class  of  those  moral  and  social  duties  which  depend  for  their 
fulfihnent  wholly  upon  the  will  of  the  individual.  Tt^.  idpi^s  of, 
validity  and  remedy  are  inseparable,  and  both  are  parts  of  the 
obligation,  which  is  guarantooa  by  the  ^L^flasiitution  against  in- 
vasion.  .  .  . 

The  right  to  imprison  for  debt  is  not  a  part  of  the  mntrfl.rt-  Hh 
regarde(fas  penal  rattier  ttian  reitt^VlLil.  The  states  may  abolish  it 
wTTeiie\'er  they  think  proper.  Beers  v.  Haughton,  0  Peters,  359; 
Ogden  V.  Saunders,  12  Wheaton,  230;  Mason  v.  Haile,  12  Id.  373; 
Sturges  V.  Crowninshield,  4  Id.  200.  They  may  also  exempt  from 
sale,  under  execution,  the  necessary  implements  of  agriculture,  the 
tools  of  a  mechanic,  and  articles  of  necessity  in  household  furniture. 
It  is  said:  "  Regulations  of  this  description  have  always  been  con- 
sidered in  every  civiHzed  community  as  properly  belonging  to  the 
remedy,  to  be  exercised  by  every  sovereignty  according  to  its  own 
views  of  pohcy  and  humanity." 


350  THE  CONTRACT  CLAUSE. 

It  is  competent  for  the  states  to  change  the  form  of  the  remedy, 
or  to  modify  it  otherwise,  as  they  may  see  fit,  provided  no  substan- 
tial right  secured  by  the  contract  is  thereby  impaired.  No  attempt 
has  been  made  to  fix  definitely  the  line  between  alterations  of  the 
remedy,  which  are  to  be  deemed  legitimate,  and  those  which,  imder 
the  form  of  modifying  the  remedy,  impair  substantial  rights. 
Every  case  must  be  determined  upon  its  own  circumstances.  When- 
ever the  result  last  mentioned  is  produced  the  act  is  within  the  pro- 
hibition of  the  Constitution,  and  to  that  extent  void.  Bronson  v. 
Kinzie,  1  Howard,  311;  McCracken  v.  Hay  ward,  2  Id.  608. 

If  these  doctrmes  were  res  intigrae  the  consistency  and  soundness 
of  the  reasoning  which  maintams  a  distinction  between  the  contract 
and  the  remedy  — or,  to  speak  more  accurately,  between  the 
remedy  and  the  other  parts  of  the  contract  —  might  perhaps  well 
be  doubted.  1  Kent's  Commentaries,  456;  Sedgwick  on  Stat,  and 
Cons.  Law,  652;  Mr.  Justice  Washington's  dissenting  opinion  in 
Mason  v.  Haile,  12  Wheaton,  379.  But  they  rest  in  this  court  upon 
a  foundation  of  authority  too  firm  to  be  shaken;  and  they  are  sup- 
ported by  such  an  array  of  judicial  names  that  it  is  hard  for  the 
mind  not  to  feel  constrained  to  believe  they  are  correct.  The  doc- 
trine upon  the  subject  established  by  the  latest  adjudications  of 
this  court  render  the  distinction  one  rather  of  form  than  substance. 

When  the  lionds  inquestion  w-ere  issued  there  were  laws  in  force 
whicti  authorized  and  required  the  collection  of  taxes^utticient  in 
amount  to  meet  the  mterest,  as  itaccruedjromjime^ 
the_entire  debt.  BTtt-fm-i:toracror_the  llthofFebruary,  1863, 
tKere^ould  be  no  difficulty  m  enforcing  tjiem!  The  amount  per- 
-mltfed  to  be  collected  by  tliaTact  will  be  insufficient;  and  it  is  not 
certain  that  anything  will  be  yielded  applicable  to  that  object.  To 
the  extent  of  the  deficiency  the  obligation  of  the  contract  will  be 
impaired,  and  if  there  be  nothing  applicable,  it  may  be  regarded  as 
annulled.  A  right  without  a  remedy  is  as  if  it  were  not.  For  every 
beneficial  purpose  it  may  be  said  not  to  exist. 

It  is  well  settled  that  a  state  may  disable  itself  by  contract  from 
exercising  its  taxing  power  in  particular  cases.  New  Jersey  v.  Wil- 
son, 7  Cranch,  166;  Dodge  v.  Woolsey,  18  Howard,  331;  Piqua 
Branch  v.  Knoop,  16  /c^.  331.  It  is  equally  clear  that  where  a  state 
has  authorized  a  municipal  corporation  to  contract  and  to  exercise 
tlie  power  of  local  taxation  to  the  extent  necessary  to  meet  its  en- 
gagements, the  power  tlius  giVeii  caiuiOL  be  withdrawn  until  the 
cgn^racni'satisfied.  The  state  and  the  corporation,  m  such  cases, 
are  equally  bouncr.     The  power  given  becomes  a  trust  which  the 


RAILROAD    COMPANY    V.    McCLURE.  351 

donor  cannot  annul,  and  which  the  donee  is  bound  to  execute;  and 
neither  thestate  nor  the  corporation  can  any  more  impair  the  obh- 
gafion  ot'  the  contract  in  this  way  than  m  any  other.  People  v. 
Bell,  lO  Cahlorma,  bVU;  Dommic  v.  ttayre,  6  sanciiord,  555. 

The  laws  requiring  taxes  to  the  requisite  amount  to  be  collected, 
in  forcewhen  th^  bonds  were  issupH,  are  still  in  tore  e  tor  flII  t  [^pur- 
poses of  this  case.  The  act  of  1863  is,  so  far  as  it  affects  these 
bonds,  a  nullity.  It  is  the  duty  of  the  city  to  impose  and  collect 
the^xes  m  all  respects  as  if  that  act  had  not  been  passed.  A  dif- 
ferent result  would  leave  nothing  of  the  contract,  but  an  abstract 
right  —  of  no  practical  value  —  and  render  the  protection  of  the 
Constitution  a  shadow  and  a  delusion. 

The  Circuit  Court  erred  in  overruling  the  application  for  a  man- 
damus. The  judgment  of  that  court  is  reversed,  and  the  cause 
will  be  remanded,  with  instructions  to  proceed. 

Remanded,  with  instructions  to  -proceed  in  conformity  with  this 
opinion. 


RAILROAD   COMPANY  v.  McCLURE 

Supreme  Court  of  the  United  States.     1871. 

[10  Wallace,  511.1  ^ 

Error  to  the  Supreme  Court  of  Iowa. 

In  the  District  Court  of  Washington  County,  Iowa,  a  bill  in 
equity  was  filed  by  McClure  and  others,  seeking  to  enjoin  the  collec- 
tion of  taxes  which  were  to  be  applied  in  the  pajTuent  of  interest 
upon  bonds  issued  by  that  county  to  the  Ohio  and  Mississippi  Rail- 
road Company.  The  court  below  having  enjoined  the  collection, 
on  the  ground  that  theJboiKls  were  void  Under  ttie  constitution_of 
Tnw3^^fhe_Sii2remeCourrof  Iowa,  on  appeal,  athrmed  tliedecree. 
Thereupon,  the  record  showing  that  in  the  highest  court  of  the  st ate 
the  unsuccessful  contention  was  made  "  that  the  decision  of  the 
court  below  violated  that  clause  in  the  Constitution  of  the  United 
States  which  provides  that  no  state  shall  pass  any  law  impairing 
the  obligation  of  contracts,"  this  writ  of  error  was  taken,  under  the 
25th  section  of  the  Judiciary  Act  of  1789,  wherein  it  is  enacted  that 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


352  THE  CONTRACT  CLAUSE. 

final  judgments  in  the  highest  court  of  a  state  where  is  drawn  in 
question  the  vaUdity  of  a  statute  of,  or  authority  exercised  under, 
any  state  on  the  ground  of  their  being  repugnant  to  the  .  .  .  Con- 
stitution of  the  United  States,  and  the  decision  is  in  favor  of  vahd- 
ity,  may  be  re-examined  and  reversed  or  affirmed  in  the  Supreme 
Court  of  the  United  States. 

Grant,  for  the  plaintiff  in  error,  referred  to  cases  in  the  Supreme 
Court  of  Iowa  to  show  that,  at  the  time  when  the  bonds  were  issued, 
the  constitution  of  that  state,  now  construed  by  its  courts  in  the 
decision  below  so  as  not  to  authorize  the  issue  by  counties  of  rail- 
road bonds,  had  been  construed  so  as  to  authorize  such  issues;  and 
argued  that  the  later  interpretation,  adverse  to  the  validity  of  the 
bonds,  impaired  the  obhgations  of  a  contract;  as  this  court  had 
decided.^ 

SwAYNE,  J.,  .  .  .  defivered  the  opinion  of  the  court.  .  .  . 

The  question  of  the  vafidity  of  the  bonds  is  not  one  of  Federal 
jurisdiction.  The  Constitution  of  the  United  States  declares 
(Article  I,  §  10)  that  no  state  shall  pass  a  law  "  impairing  the  obliga- 
tion of  contracts."  The  constitution  of  a  state  is  undoubtedly  a 
law  within  the  meaning  of  this  prohibition.  A  state  can  no  more 
do  what  is  thus  forbidden  by  one  than  by  the  other.  There  is  the 
same  impediment  in  the  way  of  both.  But  the  state  has  passed  no 
law  upon  the  subject,  and  the  constitution  of  the  state,  which,  as 
construed  by  the  Supreme  Court  of  the  state,  has  worked  the  result 
complained  of,  was  in  force  when  the  bonds  were  issued.  The  25th 
section  of  the  Judiciary  Act  of  1789  specifies  the  questions  of  which 
we  can  take  cognizance  in  this  class  of  cases,  and  expressly  excludes 
all  others  from  our  consideration.  It  is  clear  that  the  question 
before  us  is  not  within  the  affirmative  category. 

If  the  case  had  been  brought  up  from  the  Circuit  Court  under  the 
22d  section  of  the  Judiciary  Act,  this  question  and  all  others  arising 
on  the  record,  would  have  been  open  for  examination.  The  25th 
section  is  more  limited  in  its  operation. 

The  case  will  be  dismissed  for  want  of  jurisdiction,  and 
remanded  to  the  court  whence  it  came. 

1  Citing  Gelpcke  v.  Dubuque,  ante,  p.  342  (1864).  —  Ed. 


SALT   COMPANY    V.    EAST   SAGINAW.  353 

SALT  COMPANY  v.   EAST  SAGINAW. 

Supreme  Court  of  the  United  States.     1872. 

[13  Wallace,  373.]  i 

Error  to  the  Supreme  Court  of  Michigan. 

The  East  Saginaw  Salt  Manufacturing  Company  souglrLanin^ 
jajiiction  against  the  levying  and  enforcing  of  a  tax  on  real  estate 
owned  by  it.  On  Feb.  15,  1859^  an  act  of  the  legislature  of  Michi- 
gan had  provided :  "Seel.  .  .  .  All  companies  or  corporations 
formed  or  that  may  be  formed  for  the  purpose  of  boring  for  and 
manufacturing  salt  in  this  state,  and  any  and  all  individuals  en- 
gaged or  to  be  engaged  in  such  manufacture,  shall  be  entitled  to  the 
provisions  of  this  act.  Sec.  2.  All  property,  real  or  personal,  used 
for  the  purpose  mentioned,  .  .  .  shall  be  exempt  from  taxation  for 
any  purpose.  Sec.  3.  There  shall  be  paid  from  the  treasury  of  the 
state,  as  a  bounty,  to  any  individual,  or  company,  or  corporation, 
the  sum  of  ten  cents  for  each  and  every  bushel  of  salt  manufactured 
by  such  individual  company,  or  corporation,  from  water  obtained 
by  boring  in  this  state.  Provided,  That  no  such  bounty  shall  be 
paid  until  such  individual,  company,  or  corporation  shall  have  at 
least  5000  bushels  of  salt  manufactured."  The  bill  alleged  that  in 
April,  1859,  the  company  was  organized  as  a  corporation  under  the 
general  laws  of  Michigan,  for  the  purpose  of  manufacturing  salt 
from  water  to  be  obtained  in  the  state,  and  that  the  land  in  question 
had  been  in  use  by  it  for  that  purpose.  A  demurrer  to  the  bill  was 
overruled;  but  the  Supreme  Court  of  Michigan  reversed  the  decree 
of  the  court  below,  and  dismissed  the  bill,  on  the  ground  that  the 
nrt  of  ^859  hM,d  l^een  amended  by  an  a"cl  of  Marchlo.  1861.  which 
had  limited  the  tax  exemption  to  nve  years  IronTthejjrgflriiz.^^tifHi 
of^  company  or  corporation. 

M.  H.  Carpenter,  for  plaintiff  in  error;  and  B.  J.  Brown,  contra. 

Bradley,  J.,  deUvered  the  opinion  of  the  court. 

It  is  unnecessary  at  this  time  to  discuss  the  question  of  power  on 
the  part  of  a  state  legislature  to  make  a  contract  exempting  certain 
property  from  taxation.  Such  a  power  has  been  freciuently  as- 
serted and  sustained  by  the  decisions  of  this  court.  New  Jersey  v. 
Wilson,  7  Cranch,  164;  Gordon  v.  Appeal  Tax  Court,  3  Howard, 
133;-  Piqua  Bank  v.  Knoop,  16  Id.  369;  Ohio  Life  and  Trust  Co.  v. 
Debolt,  Id.  416;  Dodge  v.  Woolsey,  18  Id.  331;  Jefferson  Bank  v. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


354  THE  CONTRACT  CLAUSE. 

Skelly,  1  Black,  436;  McGee  v.  Mathis,  4  Wallace,  143;  Home  of 
the  Friendless  v.  Rouse,  8  Id.  430;  Wilmington  Railroad  v.  Reid, 
13  Wall.  264. 

The  question  in  this  case  is,  whether  any  contract  was  made  at 
all;  and, If  there  was,  whether  it  was  acontract  determinable  at 
will,  or  of  perpetual  obligation  ? 

Had  the  plaintiff  in  error  been  incorporated  by  a  special  charter, 
and  had  that  charter  contained  the  provision,  that  all  its  lands  and 
property  used  in  the  manufacture  of  salt  should  forever,  or  during 
the  continuance  of  its  charter,  be  exempt  from  taxation,  and  had 
that  charter  been  accepted  and  acted  on,  it  would  have  constituted 
a  contract.  But  the  case  before  us  is  not  of  that  kind.  It  declares, 
in  purport  and  effect,  that  all  corporations  and  individuals  who 
shall  manufacture  salt  in  Michigan  from  water  obtained  by  boring 
in  that  state,  shall  be  exempt  from  taxation  as  to  all  property  used 
for  that  purpose,  and,  after  they  shall  have  manufactured  5000 
bushels  of  salt,  they  shall  receive  a  bounty  of  10  cents  per  bushel. 
That  is  the  whole  of  it.  As  the  Supreme  Court  of  Michigan  says, 
it  is  a  bounty  law,  and  nothing  more;  a  law  dictated  by  public 
policy  and  the  general  good,  Uke  a  law  offering  a  bounty  of  fifty 
cents  for  the  killing  of  every  wolf  or  other  destructive  animal.  Sucb^^ 
a  law  is  not  a  contract  except  to  bestow  the  promised  bounty  upon 

"TKTi^wVin  pgrn  it ,  sn  InnoLXLs  thp  Inw  remains  ^ii repeals].  TheLC  is 
no  pledge  that  it  shall  not  be  repealed  at  any  tinie.  As  long  as  it 
remams  a  law  every  inhabitant  of  the  state,  every  corporation  hav- 
ing the  requisite  power,  is  at  liberty  to  avail  himself,  or  itself,  of  its 
advantages,  at  will,  by  complying  with  its  terms,  and  doing  the 
things  which  it  promises  to  reward,  but  is  also  at  liberty,  at  any 
time,  to  abandon  such  a  course.  There  is  no  obligation  on  anv 
person  to  comply  with  the  conditions  of  the  law.  It  is  a  matter 
purely  voluntary;  and,  a^  it  lij  uuielyvolunlary  on  the  one  part, so' 
it  is  purely  voluntary  on  the  other  part;  that  is,  on  the  part  of  tlie 
legislature,  to  continue,  or  not  to  contmue7  the  law.  The  law  in 
question  says  to  all :  i  ou  shall  nave  a  bounty  of  10  cents  per  bushel 
for  all  salt  manufactured,  and  the  property  used  shall  be  free  from 
taxes.  But  it  does  not  say  how  long  this  shall  continue ;  nor  do  the 
parties  who  enter  upon  the  business  promise  how  long  they  will 
continue  the  manufacture.  It  is  an  arrangement  dptprpiinable~^t 
the  will  of  either  of  the  parties,  as  much  so  as  the  hiring  of  a  labor^g 
riian  by  the  day^ 

If  it  be  objected  that  such  a  view  of  the  case  exposes  parties  to 
hardship  and  injustice,  the  answer  is  ready  at  hand,  and  is  this:  It 


SALT    COMP.AJSTY   V.    EAST    SAGINAW.  6oO 

vnll  not  be  presumed  that  the  legislature  of  a  sovereign  state  will  do 
acts  that  inflict  hardship  and  injustice. 

The  case  differs  entirely  from  those  laws  and  charters  which  have 
been  adjudged  to  be  irrevocable  contracts. 

Charters  granted  to  private  corporations  are  held  to  be  contracts. 
Powers  and  pnvileges  are  conferred  by  the  state,  mid  correapOlld- 
ingTirn'TPSJtndjjbtigat^n^  ^gQnm"^r]  j^^,7j4TPr>rT?p7Tr^^44^^ii- — Afltt'if 
no  right  to  alter  or  repeal  is  reserved,  stipulations~a:»4Qj:axat>mi7TTr 
as  to  any  other  matter  withinthe  power  of  the  legislature,  are  bind- 
ing~on  both  partiesj^and  so  corporations  formed  under  "gSrtefal 
laws  m  place  of  special  charters,  hke  the  Ohio  banks  under  the  gen- 
eral banking  law  of  that  state,  are  entitled  to  the  benefit  of  specific 
provisions  and  exemptions  contained  in  those  laws,  which  are  re- 
garded in  the  same  light  as  if  inserted  in  special  charters.  "  The 
act  is  as  special  to  each  bank,"  says  Justice  IMcLean,  delivering  the 
opinion  of  this  court,  "  as  if  no  other  institution  were  incorporated 
under  it."  Piqua  Bank  v.  Knoop,  16  Howard,  380.  In  such  cases 
the  scope  of  the  act  takes  in  the  whole  period  for  which  the  corpora- 
tion is  formed.  The  language  means  that,  during  the  existence  of 
any  corporation  formed  under  the  act,  the  stipulation  or  exemption 
specified  in  it  is  to  operate. 

The  act  under  consideration  cannot  be  interpreted  on  this  prin- 
ciple. It  applies  to  individuals  as  well  as  corporations,  and  to  all 
corporations  having  power  to  manufacture  salt.  Now,  in  the  case 
of  individuals,  must  it  be  construed  to  mean  that,  as  long  as  the 
individual  lives  and  manufactures  salt,  the  state  will  pay  him  the 
bounty  of  ten  cents  on  the  bushel,  and  exempt  his  property  from 
taxation  ?  Can  the  law  never  be  repealed  as  to  those  who  have 
once  commenced  the  manufacture  ?  Such  a  construction  could 
never  have  been  intended.  In  its  nature  it  is  a  general  law,  regula- 
tive of  the  internal  economy  of  the  state,  and  as  much  subject  to 
repeal  and  alteration  as  a  law  forbidding  the  killing  of  game  in 
certain  seasons  of  the  year.  Its  continuance  is  a  matter  of  public 
policy  only;  and  those  who  rely  on  it  must  base  their  reliance  on 
the  free  and  voluntary  good  faith  of  the  legislature.  For  the  bene- 
fit of  sheep-growers  in  some  states  dogs  are  subjected  to  a  severe 
tax.  Could  not  the  legislature  repeal  such  a  law  ?  If  Congress 
establishes  a  tariff  for  the  protection  of  certain  manufactures,  does 
that  amount  to  a  contract  not  to  change  it  ? 

In  short,  the  law  does  not,  in  our  judgment,  belong  to  that  class 
of  laws  which  can  be  denominated  contracts,  except  so  far  as  they 
have  been  actually  executed  and  complied  vnth.    There  is  no  stipu- 


356  THE  CONTRACT  CLAUSE. 

lation,  express  or  implied,  that  it  shall  not  be  repealed.  General 
encouragements,  heldout  to  all  persons  mdiscriminately,  to  engage" 
inaTarticulaTIraHe"ormanufacture,  whether  such  encouragement 
be  in  the^hape  of  bounties  or  drawbacks,  or  other  advantage,  are 
alwavslinder""^ejegislative  control,  and  may_be~discontmued  at 
anyUme!  Judgment  affirmed. 


WHITE  V.   HART. 

Supreme  Court  of  the  United  States.     1872. 

[13  Wallace,  646.] 

Error  to  the  Supreme  Court  of  Georgia. 

P.  Phillips  and  Broyles,  for  plamtiff  in  error. 

SwAYNE,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  suit  was  instituted  by  the  plaintiff  in  error  on  the  10th  of 
January,  1866,  in  the  Superior  Court  of  Chattooga  County.  He 
declared  upon  a  promissory  note  made  to  him  by  the  defendants  in 
error  for  twelve  hundred  and  thirty  dollars,  dated  February  9th, 
1859,  and  payable  on  the  1st  of  March,  A.D.  1860.  The  defendant 
pleaded  in  abatement  that  "  the  consideration  of  the  note  was  a 
slave,"  and  that  by  the  present  constitution  of  Georgia,  made  and 
adopted  since  the  last  pleadings  in  this  case,  the  court  is  prohibited 
to  take  and  exercise  jurisdiction  or  render  judgment  therein.  To 
this  plea  the  plaintiff  demurred.  The  court  overruled  the  demurrer 
and  gave  judgment  for  the  defendants.  The  plaintiff  excepted  and 
removed  the  case  to  the  Supreme  Court  of  the  state,  where  the 
judgment  was  affirmed,  and  the  plaintiff  thereupon  prosecuted  this 
writ  of  error.  The  constitution  of  Georgia  of  1868,  which  is  still 
in  force,  contains  (Art.  5,  §  17,  paragraph  7)  the  following  clause :  — 

"  Provided,  that  no  court  or  officer  shall  have,  nor  shall  the  Gen- 
eral Assembly  give,  jurisdiction  to  try,  or  give  judgment  on,  or  en- 
force any  debt  the  consideration  of  which  was  a  slave  or  the  hire 

thereof."  ... 

The  judgment  we  are  called  upon  to  review  is  sought  to  be  main- 
tained upon  the  following  grounds: 

(1)  That  when  the  constitution  of  1868  was  adopted  Georgia 
was  not  a  state  of  the  Union;  that  she  had  sundered  her  connection 


WHITE    V.    HART.  *  357 

as  such,  and  was  a  conquered  territory  wholly  at  the  mercy  of  the 
conciueror;  and  that  hence  the  inhibition  of  the  states  by  the  Con- 
stitution of  the  United  States  to  pass  any  law  impairing  the  obliga- 
tion of  contracts  had  no  application  to  her. 

(2)  That  her  constitution  does  not  affect  the  contract,  but  only 
denies  jurisdiction  to  her  courts  to  enforce  it. 

(3)  That  her  constitution  was  adopted  under  the  dictation  and 
coercion  of  Congress,  and  is  the  act  of  Congress,  rather  than  of  the 
state:  and  that,  though  a  state  cannot  pass  a  law  impairing  the 
validity  of  contracts,  Congress  can,  and  that,  for  this  reason  also, 
the  inhibition  in  the  Constitution  of  the  United  States  has  no  effect 
in  this  case.  .  .  . 

Cojigress  authorized  the  state  to  frarpp  a  npw  constitution,  and 
she  elected  to  proceed  within  the  scope  of  the  authority  conferred. 
The  result  was  submitted  to  Congress  as  a  yjoluntar\L^nd  valid 
7^  offering,  and  was  so  received  and  so  recognized  in  the  subsequent 
action  of  that  body.  .  .  .  Theactionof  Congress  upon  the  subject 
cannot  be  inquired  into.  .  .  .  We  may  add,  that  if  Congress  had 
expressly  dictated  and  expressly  approved  the  proviso  in  question, 
such  dictation  and  approval  would  be  without  effect.  Congress 
has  no  power  to  supersede  the  National  Constitution.  .  .  .  ^ 
In  the  several  acts  achnittmg  new  states  tne  same  formula  sub- 
stantially is  used  in  all  cases.  It  is,  that  the  state  named  "  shall  be 
and  is  hereby  declared  to  be  one  of  the  United  States  of  America, 
and  is  hereby  admitted  into  the  Union,  upon  an  equal  footing  with 
the  original  states,  in  all  respects  whatsoever."  (Act  of  June  loth, 
1836,  5  Stat,  at  Large,  50.)  In  the  several  Reconstruction  Acts,  the 
language  used  in  this  connection  is,  that  the  state  in  question 
"  shall  be  declared  entitled  to  representation  in  Congress,  and  sena- 
tors and  representatives  shall  be  admitted  therefrom."  (Act  of 
March  2d,  1867,  14  Id.  429;  act  of  March  23d,  1867,  15  Id.  4.) 
"  Shall  be  entitled  and  admitted  to  representation  in  Congress  as  a 
state  of  the  Union,  when,"  etc.  (Act  of  June  25th,  1868,  Id.  73.) 
And,  lastly,  in  the  final  act  as  to  Georgia  —  "  It  is  hereby  declared 
that  the  State  of  Georgia  is  entitled  to  representation  in  the 
Congress  of  the  United  States."  (Act  of  July  15th,  1870,  16  Id. 
364.) 

The  different  language  emploj^ed  in  the  two  classes  of  cases 

e\'inces  clearly  that,  in  the  .iuclgment  of  Congress,  the  reconstructed 

states  had  not  been  out  of  the~Union,  and  that  to  bring  them  back 

>  -»     into  full  communion  ^\^th  the  loyal  states,  nothing  was  necessary 

L        but  to  permit  them  to  restore  their  representation  in  Congress. 


358 


THE    CONTRACT   CLAUSE. 


Without  reference  to  this  element  of  the  case,  we  should  have  come 
to  the  same  conclusion.  But  the  fact  is  one  of  great  weight  in  the 
consideration  of  the  subject.  And  we  think  it  is  conclusive  upon 
the  judicial  department  of  the  government.  (Luther  v.  Borden,  7 
Howard,  57.) 

Georgia,  after  her  rebellion  and  before  her  representation  was 
restored,  had  no  more  povv^r  t6  grant  a  title  of  nobility,  to  passla. 
bitTot  attainder,  a!trex~pmtfacto  law,  or  law  impairing  the  oFligajjon 
ofcontracts,  or  to  do  anything  else  piohlblled  lo  her  bythell^onsti- 
tution  of  the  United  IStates,  than  she  had  before  her  rebellionbegan. 
or  after  heT restoration  to  her  normal  position  in  the  Uniom  It  is 
w"eU_settled  by  the  adjudications  oi  this  court,  that  a  state  caiTno 
more  impair  the  obhgatlon  ol  a  contract  by  adopting  a  constitution 
than  by  passing  a  law'  In  the  eye  ot  the  constitutional  inhibition 
they  are  substantially  the  same  thing.  .  .  . 

When  the  note  was  executed  and  until  the  constitution  of  1868 
was  adopted,  the  courts  of  the  state  had  unquestionable  jurisdiction 
to  entertain  a  suit  brought  to  enforce  its  collection,  and  if  that  juris- 
diction ceased  it  was  by  reason  of  the  provision  in  the  constitution 
of  the  state,  here  under  consideration.  .  .  . 

When  thej;ontract  here  in  question  was  entered  into,  ample 
remedies.  existecT  All  W^ro  tak^rra^tyt^'  b^  the  piovlsu  in  theliew 
constitution.  JNot  a  vestige  was  lett.  iilvery  means  of  enforce- 
ment was  denied,  and~this  denial  it  valid  involved  the  annihilation 
of  the^ntract.  But  it  is  not  vahd.  'I'hejjroviso  which  seeks  to 
work  this  result,  is,  so  far  as  all  pre-existing  contracts  are  concerned, 
itselTa  nullity.  It  is  to  them  as  IneHectual  a§  if  it  had  no  exis- 
tence. .  .  ^ 

Judgment  reversed.^ 

Chase,  C.  J.,  dissented  from  this  judgment. 

1  See  Osborn  v.  Nicholson,  post,  p.  506  (1872).  —  Ed. 


GUNN   V.    BARRY.  359 

GUNN  V.  BARRY. 

Supreme  Court  of  the  United  States.     1873. 

[15  Wallace,  610.]  i 

Error  to  the  Supreme  Court  of  Georgia. 

P.  Phillips,  for  plaintiff  in  error. 

SwAYNE,  J.,  delivered  the  opinion  of  the  court. 

On  the  12th  of  May,  1866,  the  plaintiff  in  error  recovered  in  the 
Superior  Court  of  Randolph  County  a  judgment  against  W.  R. 
Hart  for  the  sum  of  $402.30  principal,  and  $129.60  interest  up  to 
the  date  of  the  judgment,  and  costs.  An  execution  was  issued  upc  n 
the  judgment,  and  placed  in  the  hands  of  the  defendant  in  error  as 
sheriff  of  that  county.  He  was  thereby  commanded  to  make  the 
sums  above  mentioned  and  further  interest  upon  the  principal  from 
the  12th  of  May,  1866,  and  the  costs.  The  plaintiff  in  error  re- 
quested him  to  levy  upon  a  tract  of  land  of  272^  acres,  belonging 
to  Hart,  the  defendant  in  the  judgment.  Barry  refused.  He  as- 
signed as  the  only  reason  for  his  refusal  that  the  premises  had  been 
set  off  to  Hart  under  the  provisions  of  the  act  passed  by  the  General 
Assembly  of  the  state,  and  approved  October  3d,  1869,  entitled 
"  An  act  to  provide  for  setting  apart  a  homestead  of  realty  and  per- 
sonalty, and  for  the  valuation  of  said  property,  and  for  the  full  and 
complete  protection  and  security  of  the  same  to  the  sole  use  and 
benefit  of  families,  as  required  by  section  first  of  article  seventh  of 
the  constitution,  and  for  other  purposes."  Gunn  thereupon  peti- 
tioned the  Superior  Court  of  the  county,  for  a  writ  of  mandamus  to 
compel  the  sheriff  to  make  the  levy.  The  petition  set  forth  that 
the  land  in  question  was  the  only  property  known  to  him  subject  to 
the  lien  of  his  judgment,  except  a  tract  of  28  acres  of  the  value  of 
$100,  situated  in  the  county  of  Stuart,  which  was  also  included  in 
the  homestead  so  set  apart;  that  the  premises  in  question  were 
worth  the  sum  of  $1300,  and  that  they  embraced  a  much  larger 
number  of  acres  than  the  real  estate  exempt  from  levy  and  sale  by 
the  laws  in  force  when  the  judgment  was  recovered  and  when  the 
debt  on  which  it  was  founded  was  contracted.  It  does  not  appear 
that  these  allegations  were  denied,  and  we  do  not  understand  that 
there  is  any  controversy  upon  the  subject.  After  a  full  hearing  the 
court  affirmed  the  validity  of  the  act  in  its  retrospective  aspect,  and 
gave  judgment  against  the  petitioner.  The  Supreme  Court  of  the 
state  affirmed  this  judgment. 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


360  THE  CONTRACT  CLAUSE. 

The  first  section  of  the  seventh  article  of  the  constitution  of 
Georgia  of  1868  provides  that  "  each  head  of  a  family,  or  guardian 
or  trustee  of  a  family  of  minor  children,  shall  be  entitled  to  a  home- 
stead of  realty  to  the  value  of  $2000  in  specie,  and  personal  property 
to  the  value  of  $1000  in  specie,  to  be  valued  at  the  time  they  are  set 
apart,  and  no  court  or  ministerial  officer  in  this  state  shall  ever 
have  jurisdiction  or  authority  to  enforce  any  judgment,  decree,  or 
execution  against  said  property  so  set  apart,  including  such  im- 
provement as  may  be  made  thereon,  from  time  to  time,  except 
for  taxes,  money  borrowed  or  expended  in  the  improvement  of  the 
homestead,  or  for  the  purchase-money  of  the  same,  and  for  labor 
done  thereon,  or  material  furnished  therefor,  or  removal  of  incum- 
brances thereon." 

The  first  section  of  the  act  of  the  3d  October,  1868,  is  in  the  same 
terms. 

It  may  well  be  doubted  whether  both  these  provisions  were  not 
intended  to  be  wholly  prospective  in  their  effect.  But  as  we  under- 
stand the  Supreme  Court  of  the  state  has  come  to  a  different  con- 
clusion, we  shall  not  consider  the  question. 

The  statute  in  force  when  the  judgment  was  rendered  declared 
that  the  following  property  belongmg  to  a  debtor  who  was  the  head 
of  a  family  should  be  exempt  from  levy  and  sale  (to  "vvit) :  "  Fifty 
acres  of  land  and  five  additional  ones  for  each  of  his  children  under 
the  age  of  sixteen  years,  the  land  to  include  the  dwelling-house,  if 
the  same  and  improvements  do  not  exceed  two  hundred  dollars; 
one  farm  horse  or  mule,  one  cow  and  calf,  ten  head  of  hogs,  and 
fifty  dollars'  worth  of  provisions,  and  five  dollars'  worth  additional 
for  each  child;  beds,  bedding,  and  common  bedsteads  sufficient  for 
the  family;  one  loom,  one  spinning-wheel,  and  two  pairs  of  cards, 
and  one  hundred  pounds  of  lint  cotton ;  common  tools  of  trade  for 
himself  and  his  wife;  equipments  and  arms  of  a  militia  soldier  and 
trooper's  horse;  ordinary  cooking  utensils  and  table  crockery; 
wearing  apparel  of  himself  and  famil}'^;  family  Bil^le,  religious 
works  and  school  books;  family  portraits;  the  library  of  a  profes- 
sional man  in  actual  practice  or  business,  not  exceeding  three  hun- 
dred dollars  in  value,  to  be  selected  by  himself." 

No  one  can  cast  his  eyes  over  the  former  and  later  exemptions 
witliout^Being  struck  by  the  greatly  iucfeas'ed  magiiittrde  o^  the 

latter!  '  — 

'^fiction  10  of  Article  1  of  the  Constitution  of  the  United  States 
declares  that  *'  no  state  shall  pass  any  law  impairing  the  obligation 
of  contracts."  ' 


V 


GUNN   V.    BARRY.  361 

If  the  remedy  is  a  part  of  the  obligation  of  the  contract,  a  clearer 
case  of  impairment  can  hardly  occur  than  is  presented  in  the  record 
before  us.  Thej;ecord  of  the  act  in  question,  under  the  circum- 
stances of  this  judgment,  does  not  indeed  merely  impair,  i^^nihi- 
lates  the  remedy.     There  is  none  left. 

But  the  act  reaches  still  fnrthpr — It  withdraws-iliaJandiJrom 
the  lien  of  the  judgment,  and  thus  destroys  a  vested  right  of  prop- 
ertii3:hich  the  creditor  had  acquired  in  the  pursuit  of  the  remedy  to 
which  he  was  entitled  by  the  law  as  it  stood  when  the  judgment 
was  recovered.  It  is  in  effect  taking  one  person's  property  and 
giving  it  to  another  without  compensation.  This  is  contrary  to 
reason  and  justice,  and  to  the  fundamental  principles  of  the  social 
compact.  (Calder  v.  Bull,  3  Dallas,  388.)  But  we  must  confine 
ourselves  to  the  constitutional  aspect  of  the  case.  A  few  further 
remarks  wnll  be  sufficient  to  dispose  of  it.  It  involves  no  ques- 
tion which  has  not  been  more  than  once  fully  considered  by  this 
court. 

Georgia,  since  she  came  into  the  Union  as  one  of  the  original 
thirteen  states,  has  never  been  a  state  out  of  the  Union.  Her  con- 
stitutional rights  were,  for  a  time,  necessarily  put  in  abeyance,  but 
her  constitutional  disabiUties  and  obligations  were  m  nowise 
affected  by  her  rebellion.  The  same  view  is  to  be  taken  of  the  pro- 
vision in  her  organic  law  and  of  the  statute  in  question,  as  if  she  had 
been  in  full  communion  with  her  sister  states  when  she  gave  them 
being.  Though  her  constitution  was  sanctioned  by  Congress,  this 
provision  can  in  no  sense  be  considered  an  act  of  that  body.  The 
sanction  was  only  permissive  as  a  part  of  the  process  of  her  re- 
habilitation, and  involved  nothing  affirmative  or  negative  beyond 
that  event.  If  it  were  express  and  unequivocal,  the  result  would 
be  the  same.  Congress  cannot,  by  authorization  or  ratification, 
give  the  slightest  effect  to  a  state  law  or  constitution  in  conflict  with 
the  Constitution  of  the  United  States.  That  instrument  is  above 
and  beyond  the  power  of  Congress  and  the  states,  and  is  alike 
obligatory  upon  both.  A  state  can  no  more  impair  an  existing 
contract  by  a  constitutional  provision,  than  by  a  legislative  act; 
both  are  within  the  prohibition  of  the  National  Constitution. 

The  legal  remedies  for  the  enforcement  of  a  contract,  which 
belong  to  it  at  the  time  and  place  where  it  is  made,  are  a  part  of  its 
obligation.  A  state  may  change  them,  provided  tlie  change  involve 
no  mipairment  of  a  substantial  right.  If  the  provision  of  the  con- 
stitution, or  thp  IpjTislativp  npt  n?  a  QfatA  fell  wUli^ri  tho  f^nteggry 
last  mentioned,  they  are  to  that  extent  utterly  void.     T^ipy  arp,  for 


362  THE  CONTRACT  CLAUSE. 

all  the  pumoseskof  the  contract  which  thev  impair,  as  if  theyji^ad 
never  existed.  The  constitutional  provision  and  statute  here  in 
question,  areclearly  withmtHiFcategoryi^d  are,~therefere7Tnid. 
The  jurisdictional  prohibition  which  they  contain  with  respect  to 
the  courts  of  the  state,  can,  therefore,  form  no  impediment  to  the 
plaintiff  in  error  in  the  enforcement  of  his  rights  touching  this  judg- 
ment, as  those  rights  are  recognized  by  this  court.  (White  v.  Hart, 
13  Wallace,  646;  Von  Hoffman  v.  The  City  of  Quincy,  4  Id.  535.) 

The  judgmentis^-b^ezerssd.  and  the  cause  will  be  remanded 
to  the  SupmnTCourt  of  Georgia  with  directions  to  enter  a  judg- 
ment of  reversal,  to  reverse  the  judgment  of  the  Superior  Court  of 
Randolph  County,  and  thereafter  to  proceed  in  conformity  to  this 
opinion. 


TERRY  V.  ANDERSON. 

Supreme  Court  of  the  United  States.     1877. 

[95  United  Slates,  628.]  i 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  Georgia. 

Terry  and  others,  holders  of  the  bank  notes  of  an  insolvent  bank- 
ing corporation  chartered  by  Georgia,  brought  a  bill  of  complaint 
against  the  assignees  and  stockholders  to  enforce  the  liability  of  the 
stockholders  under  the  charter,  which  provided  that  the  stockhold- 
ers for  the  time  being  should  be  "  pledged  and  bound,  in  proportion 
to  the  amount  of  the  shares  that  each  .  .  .  may  hold  ...  for 
the  ultimate  redemption  of  the  bills  or  notes  issued  .  .  . ,  during 
the  time  he,  she,  or  they  may  hold  such  stock,  in  the  same  manner 
as  in  ordinary  commercial  cases  or  in  simple  cases  of  debt.  The 
bank  failed  to  pay  its  notes  in  lawful  money  on  Feb.  20,  l§£t5^  The 
suit  was  begun  Apr.  6,JL874.  The  defense,  raised  by  demurrer, 
was,  among  other  things,  the  Georgia  statute  of  limitations^of 
Mar^!rr57T869,  which  shortened  thellmefor  bringjiigj^ctionj__and 
the"^!!!  was  dismissed:     ~  '~~ 

Harvey  Terry  and  William  Stone,  for  appellants;  and  Henry  R. 
Jackson,  contra. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


TERRY   V.    ANDERSON.  563 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

In  Terry  v.  Tubman,  92  U.  S.  156,  we  decided  that  where  the 
charter  of  a  bank  contained  a  provision  binding  the  individual 
property  of  its  stockholders  for  the  ultimate  redemption  of  its  bills 
in  proportion  to  the  number  of  shares  held  by  them  respectively, 
the  liability  of  the  stockholder  arose  when  the  bank  refused  or 
ceased  to  redeem,  and  was  notoriously  insolvent;  and  that  when 
such  insolvency  occurred  prior  to  June  1,  1865,  an  action  against  a 
stockholder  not  commenced  by  Jan.  1,  1870,  was  barred  by  the 
statute  of  Hmitations  of  Georgia  of  March  16,  1869.  That  act,  as 
recited  in  its  preamble,  was  passed  on  account  of  the  confusion  that 
had  "  grown  out  of  the  distracted  condition  of  affairs  during  the 
late  war,"  and  substantially  barred  suits  upon  all  actions  which 
accrued  before  the  close  of  the  war,  if  not  commenced  by  the  first 
day  of  January,  1870.  .  .  . 

The  argument  is,  that  as  the  statute  of  limitations  in  force  when 
the  lial:)ility  of  the  defendants  was  uicurred  did  not  bar  an  action 
until  the  expiration  of  twenty  years  from  the  time  the  action 
accrued,  a  statute  passed  subsequently  reducing  the  limitation  im- 
paired the  contract,  and  was  consequently  void. 

This  court  has  often  decided  that  statutes  of  limitation  affecting 
existing  rights  are  not  unconstitutional,  if  a  reasonable  time  is 
given  lor  tjie_commencemeiit^^  the  bar  Jakes 

effecir^Hawkins  v.  Barney,  5  Pet.  451;  Jackson  v.  Lamphire,  3 
Id.  280;  Sohn  v.  Waterson,  17  Wall.  596;  Christmas  v.  Russell,  5 
Id.  290;  Sturges  v.  Crowninshield,  4  Wheat.  122.)  It  is  difficult  to 
see  why,  if  the  legislature  may  prescribe  a  limitation  where  none 
existed  before^jtjnay  not  changg^one^diich  hasah-eadv  been  es- 
tablishedT^heparties  to  a  contract  have  no  more  a  vested  interest 
iiTa  particular  limitation  which  has  been  fixed,  than  they  have  in  an 
unrestricted  right  to  sue.  They  have  no  more  a  vested  interest  in 
the  time  for  the  commencement  of  an  action  than  they  have  in  the 
form  of  the  action  to  be  commenced;  and  as  to  the  forms  of  action 
or  modes  of  remedy,  it  is  well  settled  that  the  legislature  may 
change  them  at  its  discretion,  provided  adequate  means  of  enforc- 
ing the  right  remain. 

In  all  such  cases,  the_questioiLis.on£_Q£j:eRSonn  and  we 

have,  thereforeTonlyS^cfliisirlpr  whether  the^ijneallowedinthis 
statute  is,  imder_alLthe_cii:cy m stances,_rea,son ?^,hle.  Of  that  the 
legislature's  primarily  the  judge;  and  we  cannot  overrule  the  deci- 
sion of  that  department  of  the  government,  unless  a  palpable  error 
has  been  committed.     In  j  udging  of  that,  we  must  place  ourselves 


364  THE  CONTRACT  CLAUSE. 

in  the  position  of  the  legislators,  and  must  measure  the  time  of 
limitation  in  the  midst  of  the  circumstances  which  surrounded 
them,  as  nearly  as  possible;  for  what  is  reasonable  in  a  particular 
case  depends  upon  its  particular  facts. 

Here,  nine  months  and  seventeen  days  were  given  to  sue  upon  a 
cause  of  action  which  had  already  been  running  nearly  four  years 
or  more.     The  third  section  of  the  statute  is  as  follows:  — 

"  That  all  actions  on  bonds  or  other  instruments  under  seal,  and 
all  suits  for  the  enforcement  of  rights  accruing  to  individuals  or  cor- 
porations under  the  statute  or  acts  of  incorporation,  or  in  any  way 
by  operation  of  law  which  accrued  prior  to  the  1st  of  June,  1865,  not 
now  barred,  shall  be  brought  by  the  1st  of  January,  1870,  or  the 
right  of  the  party,  plaintiff  or  claimant,  and  all  right  of  action  for 
its  enforcement,  shall  be  forever  barred." 

The  liability  to  be  enforced  in  this  case  is  that  of  a  stockholder, 
under  an  act  of  incorporation,  for  the  ultimate  redemption  of  the 
bills  of  a  bank  swept  away  by  the  disasters  of  a  civil  war  which  had 
involved  nearly  all  of  the  people  of  the  state  in  heavy  pecuniarj^ 
misfortunes.  Already  the  holders  of  such  bills  had  had  nearly  four 
years  within  which  to  enforce  their  rights.  Ever  since  the^lose  of 
the  war  the  bills  hadceased  to  pass  from  hand  to  hand  as  money, 
and  had  become  subjects  of  bargain  and  sale  as  merchandise.  Both 
the  original  billholders  and  the  stockholders  had  suffered  from  the 
same  cause.  The  business  interests  of  the  entire  people  of  the  state 
had  been  overwhelmed  by  a  calamity  common  to  all.  Society  de- 
manded that  extraordinary  efforts  be  made  to  get  rid  of  old  embar- 
rassments, and  permit  a  reorganization  upon  the  basis  of  the  new 
order  of  things.  This  clearly  presented  a  case  for  legislative  inter- 
ference withinthej  ust  influence  of  constitutional  limitations.  For 
this  purpose  the  obligations  of  old  contracts  could  not  bejijipaired, 
butTheir  prompTenformnent  could  be  insisted  upon  or  an  aban^- 
dooment  claimed.  That/as  we  think,  has  been  clone  here,  and  no 
more.  At  any  rate,  there  has  not  been  such  an  abuse  of  legislative 
power  as  to  justify  judicial  interference.  As  was  said  in  Jackson 
V.  Lamphire,  supra:  "  The  time  and  manner  of  their  operation 
[statutes  of  limitation],  the  exceptions  to  them,  and  the  acts  from 
which  the  time  limited  shall  begin  to  run,  will  generally  depend 
upon  the  sound  discretion  of  the  legislature,  according  to  the 
nature  of  the  titles,  the  situation  of  the  country,  and  the  emer- 
gency which  leads  to  their  enactment." 

The  Supreme  Court  of  Georgia,  in  George  v.  Gardner,  49  Ga.  441, 
held  that  the  time  prescribed  in  this  act  was  not  so  short  or  unrea- 


MURRAY    V.    CHARLESTON. 


365 


sonable  under  the  circumstances  as  to  make  it  unconstitutional; 
and  the  Circuit  Court  of  the  United  States  for  the  Southern  District 
of  Georgia  held  to  the  same  effect  in  Samples  v.  The  Bank,  1  Woods, 
523.  We  are  satisfied  with  these  conclusions.  The  circumstanc^ 
under  which  the  statute  was  passed^eemjojustifythe  actionofttre 
leglstatufeT'TEetiHi^Tthmlp^hort/^^ 

tors-to  elect  whether  to  enforce  Iteircmmli^riib^^don  them.  .  .  . 
fhed"ecree  ot  the  Circuit  Court  is  therefore         '        " 

Affirmed. 

At  a  subsequent  day  of  the  term,  a  petition  for  reh^Sftirg-\N-as 

filed. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Petition  overruled. 


MURRAY  V.  CILIRLESTOX. 
Supreme  Court  of  the  United  States.     1878. 

[96  United  States,  432.]  i 

Error  to  the  Supreme  Court  of  South  Carolina. 

In  the  Court  of  Common  Pleas  for  the  County  of  Charleston, 
Murray,  a  resident  of  Bonn,  Germany,  brought  suit  against  the 
City  of  Charleston  to  recover  the  tax  which  the  city  treasurer  had 
retained  out  of  interest  due  on  certain  certificates  of  indebted- 
ness issued  by  the  city,  termed  stock,  whereby  the  city  promised  to 
pay  certain  principal  sums  and  six  per  cent  annual  interest  payable 
quarterly.  In  1783  the  state  incorporated  the  city  and  gave  to  it 
power  of  making  "  assessments  on  the  inhabitants  of  Charleston, 
or  those  who  hold  taxable  property  within  the  same."  While 
I^Iurray  was  owner  of  the  certificates,  the  city  passed  ordmances 
assessing  a  tax  of  two  cents  upon  the  dollar  of  the  value  of  all  real 
and  personal  property  within  the  city,  and  expressly  directing  that 
the  tax  assessed  on  city  stock  be  retained  by  the  city  treasurer  out 
of  the  interest  due  thereon.  The  city's  answer  set  forth  that  the 
stock  was  not  expressly  exempted  from  taxation  by  the  ordinance 
u^diFwhiihjtjvas^^  The'^urt  tried  the  case  without  a 

juiyjmind  thel^cIsaTindic'ated,  and  gave  jud_gmentfQjUh£^ity. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


366  THE  CONTRACT  CLAUSE. 

On  appeal,  the  judgment  was  affirmed  by  the  Supreme  Court  of  the 

state. 

Conner,  for  plaintiff  in  error;  and  P.  Phillips  and  others,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

We  come,  then,  to  the  question  whether  the  ordinances  decided 
y.yJ^^^J^^^■ri.  tn  hp  vRJid  Hid  impair  the  obligation  of  theTity's  con- 
tract with  the  plaintiff.  The  solution  of  this  question  depends  upon 
a  correct  understanding  of  what  that  obhgation  was.  By  the  certifi- 
cates of  stock,  or  city  loan,  held  by  the  plaintiff,  the  city  assumed 
to  pay  to  him  the  sum  mentioned  in  them,  and  to  pay  six  per  cent 
interest  in  quarterly  payments.  The  obligation  undertaken,  there- 
fore,  was  both  to  pay  the  interest  at  tne  rate  Spe^'ihed,  and  to  pay  if ^ 
to'  the  plaintiff.  Such  was  the  contract,  and  sucii  was  the  whole 
contract.  TTcontained  no  reservation  or  restriction  of  the  duty 
described.  But  the  city  ordinances,  if^they  can  have  any  force, 
change  both  the  form  and  ettect  ot  tne  ulidortaking.  They  are  the" 
language  ot  iVik  pfonil^Of. — In  bubbluilLb,  llwy  ii'dfto  the  creditor: 
"  True,  our  assumption  was  to  pay  to  you  quarterly  a  sum  of 
money  equal  to  six  per  cent  per  amium  on  the  debt  we  owe  you. 
Such  was  our  express  engagement.  But  we  now  lessen  our  obliga- 
tion. Instead  of  pa>ang  all  the  interest  to  you,  we  retain  a  part  for 
ourselves,  and  substitute  the  part  retained  for  a  part  of  what  we 
expressly  promised  you."  Thus  applying_thp  nrf]ippn(>ps  to  the 
contractJt_becomes  a  very  different  thingJniiimJiat4^^v^^a&^vhen 
ifwaslnadeT  and  the  chang^Js_effectedJbyU£gislation,.,hX-Ordi- 
nances"ofTHe~city,  enacted  under  the_asserted  authority  of  laws 
passed  by  the  legislature^  Thatbvsuch  legislatioiLthe  obligation 
of  the  contfacTis^paire'd  is  manifest  enough,  unless  it  can  be  held 
there  was  some  unplied  reservation  of  a  right  in  the  creditor  to 
change  its  terms,  a  right  reserved  when  the  contract  was  made,  — 
unless  some  power  was  withheld,  not  expressed  or  disclosed,  but 
which  entered  into  and  limited  the  express  undertaking.  But  how 
that  can  be,  —  how  an  exi^ress  contract  can  contain  an  imphcation, 
or  consist  with  a  reservation  directly  contrary  to  the  words  of  the 
instrument,  —  has  never  yet  been  discovered. 

It  has  been  strenuously  argued  on  behalf  of  the  defendant  that 
the  State  of  South  Carolina  and  the  city  council  of  Charleston  pos- 
sessed the  power  of  taxation  when  the  contracts  were  made,  that  by 
the  contracts  the  city  did  not  surrender  this  power,  that,  therefore, 
the  contracts  were  subject  to  its  possible  exercise,  and  that  the  city 
ordinances  were  only  an  exertion  of  it.  We  are  told  the  power  of  a 
state  to  impose  taxes  upon  subjects  within  its  jurisdiction  is  im- 


MURRAY   V.    CHARLESTON.  367 

limited  (with  some  few  exceptions),  and  that  it  extends  to  every- 
thing that  exists  by  its  authority  or  is  introduced  by  its  permission. 
Hence  it  is  inferred  that  the  contracts  of  the  city  of  Charleston  were 
made  with  reference  to  this  power,  and  in  subordination  to  it. 

All  this  may  be  admitted,  but  it  does  not  meet  the  case  of  the 
defendant.  We  do  not  question  the  existence  of  a  state  power  to 
levy  taxes  as  claimed,  nor  the  subordination  of  contracts  to  it,  so 
far  as^is  unrestrained  by  constitutional  limitations.  But  the 
power  is  not  without  limits,  and  one  of  its  limitations  is  foundTin  the 
flfllTsp  nf  thf  h'ederalConstitution.  that  no  state  shall  pass  a  law 
impairmg;  the  obhgatioiiof  contgailts.  A  change  of  the  expressed 
stiputations~of  a  contract,  or  a  relief  of  a  debtor  from  strict  and 
literal  compliance  with  its  requirements,  can  no  more  be  effected 
by  an  exertion  of  the  taxing  power  than  it  can  be  by  the  exertion  of 
any  other  power  of  a  state  legislature.  The  constitutional  pro- 
vision against  impairing  contract  obligations  is  a  limitation  upon  the 
taxing  power,  as  well  as  upon  all  legislation,  whatever  form  it  may 
assume.  Indeed,  attempted  state  taxation  is  the  mode  most  fre- 
quently adopted  to  affect  contracts  contrary  to  the  constitutional 
inhibition.  It  most  frequently  calls  for  the  exercise  of  our  super- 
visory power.  It  may,  then,  safely  be  affirmed  that  no  state,  by 
virtue  of  its  taxing  power,  can  say  to  a  delator,  "  You  need  not  pay 
to  your  creditor  all  of  what  you  have  promised  to  him.  You  may 
satisfy  your  duty  to  him  by  retaining  a  part  for  yourself,  or  for 
some  municipality,  or  for  the  state  treasury."  Much  less  can  a  city 
say,  "  We  will  tax  our  debt  to  you,  and  in  virtue  of  the  tax  withhold 
a  part  for  our  own  use." 

What,  then,  is  meant  by  the  doctrine  that  contracts  are  made 
with  reference  to  the  taxing  power  resident  in  the  state,  and  in  sub- 
ordination to  it  ?  Is  it  meant  that  when  a  person  lends  money  to  a 
state,  or  to  a  municipal  division  of  the  state  having  the  power  of 
taxation,  there  is  in  the  contract  a  tacit  reservation  of  a  right  in  the 
debtor  to  raise  contributions  out  of  the  money  promised  to  be  paid 
before  payment  ?  That  cannot  be,  because  if  it  could ,  the  contract 
(in  the  language  of  Alexander  Hamilton)  would  "  involve  two  con- 
tradictory things:  an  obhgation  to  do,  and  a  right  not  to  do;  an 
obhgation  to  pay  a  certain  sum,  and  a  right  to  retain  it  in  the  shape 
of  a  tax.  It  is  against  the  rules,  both  of  law  and  of  reason,  to  admit 
by  implication  in  the  construction  of  a  contract  a  principle  which 
goes  in  destruction  of  it."  The  truth  is,  states  and  cities,  when  they 
borrow  money  and  contract  to  repay  it  with  interest,  are  not  acting 
as'snvprpi^mties.     Thev  come  do\\na  to  the  level  of  ordinary  ind^i- 


368  THE  CONTRACT  CLAUSE. 

viduals.  Tlieir  contracts  have  the  same  meaning  as  that  of  similar 
contracts  between  private  persons.  Hence,  instead  of  there  Ijemg 
in  the  unclertaking  of  a  state'or  city  to  pay,  a  reservation  of  a  sov- 
ereign right  to  withhold  payment,  the  contract  should  be  regarded 
as  an  assurance  that  such  a  right  will  not  be  exercised.  A  promise 
to  pay,  with  a  reserved  right  to  deny  or  change  the  effect  of  the 
promise,  is  an  absurdity. 

Is jthenj_2I2P6I^y>  which  consists  in  the  promise  of  a  state,  or  of 
a  municipality"of_a_state7beyoiid^the  reach  of  taxation  ?  We  "do 
noraffirm  that  "it  is.  A  state  may  undoubtedly  tax  any  of  its  credi- 
tors within  its  jurisdiction  for  the  debt  due  to  him,  and  regulate  the 
amount  of  the  tax  by  the  rate  of  interest  the  debt  bears,  if  its  prom- 
ise be  left  unchanged.  A  tax  thus  laid  impairs  no  obligation  as- 
sumed. It  leaves  the  contract  untouched.  But  until  payment  of 
the  debt  or  interest  has  been  made,  as  stipulated,  we  think  no  act  of 
state  sovereignty  can  work  an  exoneration  from  what  has  been 
promised  to  the  creditor;  namely,  payment  to  him,  without  a  vio- 
lation of  the  Constitution.  "  The  true  rule  of  every  case  of  prop- 
erty founded  on  contract  v/ith  the  government  is  this:  It  must  first 
be  reduced  into  possession,  and  then  it  will  become  subject,  in  com- 
mon wdth  other  similar  property,  to  the  right  of  the  government  to 
raise  contributions  upon  it.  It  may  be  said  that  the  government 
may  fulfil  this  principle  by  paying  the  interest  with  one  hand,  and 
taking  back  the  amount  of  the  tax  with  the  other.  But  to  this  the 
answer  is,  that,  to  comply  truly  with  the  rule,  the  tax  must  be  upon 
all  the  money  of  the  community,  not  upon  the  particular  portion  of 
it  which  is  paid  to  the  public  creditors,  and  it  ought  besides  to  be 
so  regulated  as  not  to  include  a  lien  of  the  tax  upon  the  fund.  The 
creditor  should  be  no  otherwise  acted  upon  than  as  every  other  pos- 
sessor of  money;  and,  consequently,  the  money  he  receives  from 
the  public  can  then  only  be  a  fit  subject  of  taxation  when  it  is  en- 
tirely separated  "  (from  the  contract),  "  and  thrown  undistm- 
guished  into  the  common  mass."  (3  Hamilton,  Works,  514  et  seq.) 
Thus  only  can  contracts  with  the  state  be  allowed  to  have  the  same 
meaning  as  all  other  similar  contracts  have.  .  .  . 

In  opposition  to  the  conclusion  we  have  reached  we  are  referred 
to  Champaign  County  Bank  v.  Smith  (7  Ohio  St.  42),  and  People  v. 
Home  Insurance  Co.  (29  Cal.  533),  in  which  it  is  said  the  power  of  a 
state  to  tax  its  own  bonds  was  sustained.  We  do  not,  however, 
regard  those  cases  as  in  conflict  with  the  opinion  we  now  hold;  and, 
if  they  were,  they  would  not  control  our  judgment  when  we  are 


NEWTON   V.    COMMISSIONERS.  369 

called  upon  to  determine  the  meaning  and  extent  of  the  Federal 
Constitution.  .  .  . 

We  do  not  care  now  to  enter  upon  the  consideration  of  the  ques- 
tion whether  a  state  can  tax  a  debt  due  by  one  of  its  citizens  or 
municipalities  to  a  non-resident  creditor,  or  whether  it  has  any 
jurisdiction  over  such  a  creditor,  or  over  the  credit  he  owns.  Such 
a  discussion  is  not  necessary,  and  it  may  be  doubtful  whether  the 
question  is  presented  to  us  by  this  record. 

It  is  enough  for  the  present  case  that  we  hold,  as  we  do,  that  no 
municipality  of  a  state  can,  by  its  own  ordinances,  under  the  guise 
of  TaxationTrelieve  itself  froin_pf^rfornnino^to  the  letter  all  that  it  has 
expressTy  promised  to  ijt§_£i£di4Qrs.  .  .  . 

The  judgment  of  the  Supreme  Court  of  South  Carolina  will  be 
reversecl,  and  the  record  remitted  with  instructions  to  proceed  in 
accordance  with  this  opinion;  and  it  is  So  ordered. 

Miller,  J.,  with  whom  concurred  Hunt,  J.,  dissenting. 

I  am  of  opinion  that  the  power  of  taxation  found  in  the  charter 
of  the  city  of  Charleston,  long  before  the  contract  was  made  which 
is  here  sued  on,  entered,  hke  all  other  laws,  into  the  contract,  and 
became  a  part  of  it.  .  .  . 


NEWTON  V.  COMMISSIONERS. 

Supreme  Court  of  the  United  States.     1880. 

[100  United  States,  548.]  i 

Error  to  the  Supreme  Court  of  Ohio. 

In  1846  the  legislature  of  Ohio  passed  an  act  creating  a  county 
which  "  shall  be  known  by  the  name  of  Mahoning,  with  the  county 
seat  at  Canfield,"  and  providing  that  "  before  the  seat  of  justice 
shall  be  considered  permanently  established  at  Canfield,  the  pro- 
prietors or  citizens  thereof  shall  give  bond  ...  to  the  commis- 
sioners of  said  county  ...  for  the  sum  of  $5000,  to  be  applied  in 
erecting  public  buildings  for  said  county,"  and  that  "  the  citizens 
of  Canfield  shall  also  donate  .  .  .  ground  on  which  to  erect  public 
buildings."  Citizens  of  Canfield  made  contributions,  supplying 
land  and  buildings  which  in  1848  were  accepted  by  the  county  com- 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


370  THE  CONTRACT  CLAUSE. 

missioners  as  fully  complying  with  the  act.  Canfield  continued  to 
be  the  county  seat  until  1874,  when  the  legislature  passed  an  act 
for  removing  the  county  seat  to  Youngstown,  provided  the  major- 
ity of  the  electors  voting  at  the  next  election  in  the  county  should 
so  vote.  The  vote  having  been  in  favor  of  removal,  citizens  of 
Canfield,  including  persons  who  had  aided  in  complying  with  the 
conditions  of  1846,  filed  in  the  Common  Pleas  Court  of  Mahoning 
County  a  petition  praying  that  the  county  commissioners  be  en- 
joined from  removing  the  county  seat  to  Youngstown.  The  court 
denied  the  injunction.  The  decision  was  affirmed  by  the  Supreme 
Court  of  Ohio. 

J.  A.  Garfield,  for  plaintiffs  in  error;  and  T.  W.  Sanderson, 
contra. 

SwAYNE,  J,,  delivered  the  opinion  of  the  court. 

It  is  claimed  in  behalf  of  the  plaintiffs  in  error  that  the  act  of  the 
16th  of  February,  1846,  and  what  was  done  under  it,  constituted 
an  executed  contract  which  is  binding  on  the  state;  and  that  the 
act  of  April  9, 1874,  and  the  steps  taken  pursuant  to  its  provisions, 
impair  the  obligation  of  that  contract,  and  bring  the  case  within  the 
contract  clause  of  the  Constitution  of  the  United  States.  (Art.  1, 
sect.  10.) 

These  allegations  are  the  ground  of  our  jurisdiction.  They  pre- 
sent the  only  question  argued  before  us,  and  our  remarks  will  be 
confined  to  that  subject. 

The  case  may  be  properly  considered  under  two  aspects :  — 

Was  it  competent  for  the  state  to  enter  into  such  a  contract  as  is 
claimed  to  have  been  made  ? 

And  if  such  a  contract  were  made,  what  is  its  meaning  and  effect  ? 

Undoubtedly,  there  are  cases  in  which  a  state  may,  as  it  were, 
lay  aside  its  sovereignty  and  contract  like  an  individual,  and  be 
bound  accordingly.  (Curran  v.  State  of  Arkansas,  15  How.  304; 
Davis  V.  Gray,  16  Wall.  203.) 

The  cases  in  which  such  contracts  have  been  sustained  and  en- 
forced are  very  numerous.  Many  of  them  are  cases  in  which  the 
question  was  presented  whether  a  private  act  of  incorporation,  or 
one  or  more  of  its  clauses,  is  a  contract  within  the  meaning  of  the 
Constitution  of  the  United  States.  There  is  no  such  restraint  upon 
the  British  Parliament.  Hence  the  adjudications  of  that  country 
throw  but  little  light  upon  the  subject. 

The  Dartmouth  College  Case  was  the  pioneer  in  this  field  of  our 
jurisprudence. 


NEWTON   V.    COMMISSIONERS.  371 

The  principle  there  laid  down,  and  since  maintained  in  the  cases 
which  have  followed  and  been  controlled  by  it,  has  no  application 
where  the  statute  in  question  is  a  public  law  relating  to  a  public 
subject  within  the  domain  of  the  general  legislative  power  of  the 
state,  and  involving  the  public  rights  and  pubhc  welfare  of  the  en- 
tire community  affected  by  it.  The  two  classes  of  cases  are 
separated  by  a  broad  line  of  demarcation.  The  distinction  was 
forced  upon  the  attention  of  the  court  by  the  argument  in  the 
Dartmouth  College  Case.  .  .  . 

The  judgment  of  the  court  in  that  case  proceeded  upon  the 
ground  that  the  college  was  "  a  private  eleemosynary  institution, 
endowed  with  a  capacity  to  take  property  for  purposes  uncon- 
nected with  the  government,  whose  funds  are  bestowed  by  indi- 
viduals on  the  faith  of  the  charter." 

In  the  later  case  of  East  Hartford  v.  The  Hartford  Bridge  Com- 
pany (10  How.  511),  this  court  further  said:  "  But  it  is  not  found 
necessary  for  us  to  decide  finally  on  this  first  and  most  doubtful 
question,  as  our  opinion  is  clearly  in  favor  of  the  defendant  m  error 
on  the  other  question;  namely,  that  the  parties  to  this  grant  did 
not  by  their  charter  stand  in  the  attitude  towards  each  other  of 
making  a  contract  by  it,  such  as  is  contemplated  in  the  Constitu- 
tion, and  so  could  not  be  modified  by  subsequent  legislation.  The 
legislature  was  actmg  here  on  the  one  part,  and  public  municipal 
corporations  on  the  other.  They  were  acting,  too,  in  relation  to  a 
public  object,  being  virtually  a  highway  across  the  river,  over 
another  highway  up  and  down  the  river.  From  this  standing  and 
relation  of  these  parties,  and  from  the  subject-matter  of  their  ac- 
tion, we  think  that  the  doings  of  the  legislature  as  to  this  ferry 
must  be  considered  rather  as  public  laws  than  as  contracts.  They 
related  to  public  interests.  They  changed  as  those  interests  de- 
manded. The  grantees  likewise,  the  towns  being  mere  organiza- 
tions for  public  purposes,  Avere  liable  to  have  their  public  powers, 
rights,  and  duties  modified  or  abolished  at  any  moment  by  the 
legislature.  .  .  . 

''  It  is  hardly  possible  to  conceive  the  grounds  on  which  a  differ- 
ent result  could  be  vindicated,  without  destroymg  all  legislative 
sovereignty,  and  checking  most  legislative  improvements  and 
amendments,  as  well  as  supervision  over  its  subordinate  public 
bodies." 

The  legislative  power  of  a  state,  except  so  far  as  restrained  by  its 
own  constitution,  is  at  all  times  absolute  with  respect  to  all  offices 
within  its  reach.     It  may  at  pleasure  create  or  abolish  them,  or 


372  THE  CONTRACT  CLAUSE. 

modify  their  duties.  It  may  also  shorten  or  lengthen  the  term  of 
service.  And  it  may  increase  or  diminish  the  salary  or  change  the 
mode  of  compensation.     (Butler  et  al.  v.  Pennsylvania,  10  How. 

402.) 

The  police  power  of  the  states,  and  that  with  respect  to  municipal 
corporations,  and  to  many  other  things  that  might  be  named,  are 
of  the  same  absolute  character.  (Cooley,  Const.  Lim.,  pp.  232, 
342;  The  Regents  v.  Williams,  4  Gill  &  J.  (Md.)  321.) 

In  all  these  cases,  there  can  be  no  contract  and  no  irrepealable 
lawTbecause  fhey  are  ^^  govermuenlal  bubjecls,"  and  licnoo  within- 
the  category  before  stated.  -— 

TEeyTirTntve-pttblic  interests,  and  legislative  acts  concemuig 
them  are'necessarily  public  lav^ — Everr-strm^ing  legislature 
^joss^ses  the  same  jiinsdi7fTon"and  power  with  respect  to  them  as 
its  predecessors.  The  latter  have  the  same  power  of  repeal  and 
modification  which  the  former  had  of  enactment,  neither  more  nor 
less.  All  occupy,  in  this  respect,  a  footing  of  perfect  equality. 
This  must  necessarily  be  so  in  the  nature  of  things.  It  is  vital  to 
the  public  welfare  that  each  one  should  be  able  at  all  times  to  do 
whatever  the  varying  circumstances  and  present  exigencies  touch- 
ing the  subject  involved  may  require.  A  different  result  would  be 
fraught  with  evil. 

All  these  considerations  apply  with  full  force  to  the  times  and 
places  of  holding  courts.  They  are  both  purely  public  things,  and 
the  laws  concerning  them  must  necessarily  be  of  the  same  charac- 
ter. 

If  one  may  be  bargained  about,  so  may  the  other.  In  this  re- 
spect there  is  no  difference  in  principle  between  them. 

The  same  reasoning,  pushed  a  step  farther  in  the  same  direction, 
would  mvolve  the  same  result  with  respect  to  the  seat  of  govern- 
ment of  a  state. 

If  a  state  capital  were  sought  to  be  removed  under  the  circum- 
stances of  this  case  with  respect  to  the  county  seat,  whatever  the 
public  exigencies,  or  the  force  of  the  public  sentiment  which  de- 
manded it,  those  interested,  as  are  the  plaintiffs  in  error,  might, 
according  to  their  argument,  effectually  forbid  and  prevent  it;  and 
this  result  could  be  brought  about  by  means  of  a  bill  in  equity  and 
a  perpetual  injunction.  .  .  '. 

But  conceding,  for  the  purposes  of  this  opinion,  that  there  is  here 
a  contract,  as  claimed  by  the  plaintiffs  in  error,  then  the  question 
arises.  What  is  the  contract;  or,  in  other  words,  to  what  does  it 
bind  the  state  ? 


NEWTON    V.    COMMISSIONERS.  373 

The  rules  of  interpretation  touching  such  contracts  are  well  set- 
tled in  this  court.  In  Tucker  v.  Ferguson  (22  Wall.  527)  we  said : 
"  But  the  contract  must  be  showTi  to  exist.  There  is  no  presump- 
tion in  its  favor.  Every  reasonable  doubt  should  be  resolved 
against  it.  Where  it  exists,  it  is  to  be  rigidly  scrutinized,  and  never 
permitted  to  extend  either  in  scope  or  duration  beyond  what  the 
terms  of  the  concession  clearly  require."  There  must  have  been  a 
deliberate  intention  clearly  manifested  on  the  part  of  the  state  to 
grant  what  is  claimed.  Such  a  purpose  cannot  be  inferred  from 
equivocal  language.  (Providence  Bank  v.  Billings,  4  Pet.  514; 
Oilman  v.  City  of  Sheboygan,  2  Black,  510.)  ... 

It  will  be  observed  that  there  is  nothing  said  about  the  county 
seat  remainmg,  or  being  kept,  at  Canfield  forever,  or  for  any  speci- 
fied time,  or  "  permanently."     At  most,  the  stipulation  is" that  it 
shall  be  considered  as  permanently  established  there  when  the  con- 
ditions specified  are  fulfilled.      If  the  legislature  had  intended  to 
assume  an  obligation  that  it  should  be  kept  there  in  perpetuity,  it 
is  to  be  presumed  it  would  have  said  so.     We  cannot  —  certainly 
not  in  this  case  —  interpolate  into  the  statute  a  thing  so  important, 
which  it  does  not  contain.     The  most  that  can  be  claimed  to  have 
been  intended  by  the  state  is,  that  when  the  conditions  prescribed 
were  complied  with,  the  county  seat  should  be  then  and  thereupon 
"  permanently  established  "  at  the  designated  place.     We  are, 
therefore,  to  consider  what  is  the  meaning  of  the  phrase  "  perma- 
nently established."      Domicile  is  acquired  by  residence  and  the 
aminus  manendi,  the  intent  to  remam.     A  permanent  residence  is 
acquired  in  the  same  way.     In  neither  case  is  the  idea  involved 
that  a  change  of  domicile  or  of  residence  may  not  thereafter  be 
made.     But  this  in  no  wise  affects  the  pre-existing  legal  status  of 
the  individual  in  either  case  while  it  continues.     So  the  county  seat 
was  permanently  established  at  Canfield  when  it  was  placed  there 
with  the  intention  that  it  should  remain  there.     This  fact,  thus 
complete,  was  in  no  wise  affected  by  the  further  fact  that  thirty 
years  later  the  state  changed  its  mind  and  determined  to  remove, 
and  did  remove,  the  same  county  seat  to  another  locafity.     It  ful- 
filled at  the  outset  the  entire  obligation  it  had  assumed. 

The  results  of  the  elaborate  research  of  one  of  the  counsel  for  the 
defendants  in  error  showed  that  the  phrase  "  permanently  estab- 
bhshed  "  is  a  formula  in  long  and  frequent  use  in  Ohio,  with  respect 
to  county  seats  established  othenvise  than  temporarily.  Yet  it  is 
believed  this  is  the  first  instance  in  the  juridical  history  of  the  state 
in  which  such  a  claim  as  is  here  made  has  been  set  up. 


374  THE  CONTRACT  CLAUSE. 

This  practical  interpretation  of  the  meaning  of  the  phrase, 
though  by  no  means  conclusive,  is  entitled  to  grave  and  respectful 
consideration.  Judgment  affirmed} 


STONE  V.  MISSISSIPPI. 
Supreme  Couht  of  the  United  States.     1880. 

[101  United  States,  814.]  ^ 

Error  to  the  Supreme  Court  of  Mississippi. 

In  1874  the  Attorney  General  of  JMississippi  filed  in  the  Circuit 
Court  of  Warren  County  an  information  in  the  nature  of  quo  war- 
ranto against  Stone  and  others,  alleging  that  ^^'ithout  warrant  of  law 
they  were  carrying  on  a  lottery  under  the  name  of  "  The  Missis- 
sippi Agricultural,  Educational,  and  Manufacturing  Aid  Society." 
The  information,  answer,  and  reply  showed  that  in  1867  the  legis- 
lature of  Mississippi  passed  an  act  incorporating  the  society  for 
lottery  purposes,  that  the  corporation  performed  all  conditions, 
and  that  it  was  carrying  on  a  lottery.  The  state  constitution, 
framed  in  1868  and  ratified  in  1869,  declared  that  'Hhe  legislature 
shall  never  authorize  any  lottery;  .  .  .  nor  shall  any  lottery  here- 
tofore authorized  be  permitted  to  be  drawn  ";  and  in  1870  the 
legislature  passed  an  act  making  it  unla^N-ful  to  conduct  a  lottery. 
The  court  adjudged  that  the  respondents  be  ousted  from  all  the 
liberties  and  privileges,  franchises  and  emoluments,  exercised  by 
them  under  and  by  virtue  of  the  act  of  incorporation. 

P.  Phillips,  for  plaintiffs  in  error;  and  A.  M.  Clayton  and  Van  H. 
Manning,  contra. 

Waite,  C.  J.,  dehvered  the  opinion  of  the  court. 
•  It  is  now  too  late  to  contend  that  any  contract  which  a  state 
actually  enters  into  when  granting  a  charter  to  a  private  corpora- 
tion is  not  within  the  protection  of  the  clause  in  the  Constitution  of 
the  United  States  that  prohibits  states  from  passing  laws  impairing 
the  obligation  of  contracts.  (Art.  1,  sect.  10.)  The  doctrines  of 
Trustees  of  Dartmouth  College  v.  Woodward  (4  Wheat.  518),  an- 

1  See  New  Orleans  v.  New  Orleans  Waterworks  Co.,  142  U.  S.  79  (1891). 
—  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


STONE   V.   MISSISSIPPI.  375 

nounced  by  this  court  more  than  sixty  years  ago,  have  become  so 
imbedded  in  the  jurisprudence  of  the  United  States  as  to  make 
them  to  all  intents  and  purposes  a  part  of  the  Constitution  itself .  In 
this  connection,  however,  it  is  to  be  kept  in  mind  that  it  is  not  the 
charter  which  is  protected,  but  only  any  contract  the  charter  may 
contanu  it  tnere  is  nO  contract,  there  is  nothing  m  the  grant_on 
which  the  Constitution  can  act.  Consequently,  the  first  inquiry 
in  this  class  of  cases  alwjiys  is,  whether  a  contract  has  in  fact  been 
entered  into,  and  if  so,  what  its  obligations  are.  .  .  . 

If  the  legislature  that  granted  this  charter  had  the  power  to  bind 
the  people  of  the  state  and  all  succeeding  legislatures  to  allow  the 
corporation  to  continue  its  corporate  business  during  the  whole 
term  of  its  authorized  existence,  there  is  no  doubt  about  the  suffi- 
ciency of  the  language  employed  to  effect  that  object,  although 
there  was  an  evident  purpose  to  conceal  the  vice  of  the  transaction 
by  the  phrases  that  were  used.  Whether  the  alleged  contract  exists, 
therefore,  or  not,  depends  on  the  authority  of  the  legislature  to  bind 
the  state  and  the  people  of  the  state  in  that  way. 

All  agree  that  the  legislature  cannot  bargain  away  the  police 
power  of  a  state.  ''  Irrevocable  grants  ot  property  ana  franchises 
maT'^Tmade  li  ihey  do  notnnjiair  the  snprpmp  anthnritv  to  m;^ke 
laws  for  the  right  government  of  the^taJp;  but  no  legitillitlirfi  (^an 
f^nTtnil  thp  power  of  its  successorsto_make  such  laws  as  they  may 
deem  proper  in  matt^rsj  ol  police. '^  (Metropolitan  Board  of  Excise 
V.  Barrie,  'U  R  .V  .  bo/ ;  Hoyd  v.  Alabama,  94  U.  S.  645.)  Many 
attempts  have  been  made  in  this  court  and  elsewhere  to  define  the 
police  power,  but  never  with  entire  success.  It  is  always  easier  to 
determine  whether  a  particular  case  comes  within  the  general  scope 
of  the  power,  than  to  give  an  abstract  definition  of  the  power  itself 
which  will  be  in  all  respects  accurate.  No  one  denies,  however, 
that  it  extends  to  all  matters  affecting  the  public  health  or  the  pub- 
lic morals.  (Beer  Company  v.  Massachusetts,  97  Id.  25;  Patterson 
V.  Kentucky,  Id.  501.)  Neither  can  it  be  denied  that  lotteries  are 
proper  subjects  for  the  exercise  of  this  power.  We  are  aware  that 
formerly,  when  the  sources  of  pubhc  revenue  were  fewer  than  now, 
they  were  used  in  some  or  all  of  the  states,  and  even  in  the  District 
of  Columbia,  to  raise  money  for  the  erection  of  public  buildings, 
making  public  improvements,  and  not  unfrequently  for  educational 
and  religious  purposes.  .  .  . 

There  is  now  scarcely  a  state  in  the  Union  where  lotteries  are 
tolerated,  and  Congress  has  enacted  a  special  statute,  the  object  of 


376  THE  CONTRACT  CLAUSE. 

which  is  to  close  the  mails  against  them.  (Rev.  Stat.,  sect.  3894; 
19  Stat.  90,  sect.  2.) 

The  question  is  therefore  directly  presented,  whether,  in  view  of 
these  facts,  the  legislature  of  a  state  can,  by  the  charter  of  a  lottery 
company,  defeat  the  will  of  the  people,  authoritatively  expressed, 
in  relation  to  the  further  continuance  of  such  business  in  their 
midst.  We  think  it  cannot.  No  legislature  can  bargain  away  the 
pubhc  health  or  the  public  morals.  The  people  themselves  can- 
not do  it,  much  less  their  servants.  The  supervision  of  both  these 
subjects  of  governmental  power  is  continuing  in  its  nature,  and 
they  are  to  be  dealt  with  as  the  special  exigencies  of  the  moment 
may  require.  Government  is  organized  with  a  view  to  their  pres- 
ervation, and  cannot  divest  itself  of  the  power  to  provide  for  them. 
For  this  purpose  the  largest  legislative  discretion  is  allowed,  and 
the  discretion  cannot  be  parted  with  any  more  than  the  power  it- 
self.    (Beer  Company  v.  Massachusetts,  supra.) 

In  Trustees  of  Dartmouth  College  v.  Woodward  (4  Wheat.  518), 
it  was  argued  that  the  contract  clause  of  the  Constitution,  if  given 
the  effect  contended  for  in  respect  to  corporate  franchises,  "  would 
be  an  unprofitable  and  vexatious  interference  with  the  internal  con- 
cerns of  a  state,  would  unnecessarily  and  unwisely  embarrass  its 
legislation,  and  render  immutable  those  civil  institutions  which  are 
established  for  the  purpose  of  internal  government,  and  which,  to 
subserve  those  purposes,  ought  to  vary  with  varying  circmn- 
stances "  (p.  628) ;  but  Mr.  Chief  Justice  Marshall,  when  he 
announced  the  opinion  of  the  court,  was  careful  to  say  (p.  629), 
"that  the  framers  of  the  Constitution  did  not  mtend  to  restrain 
states  in  the  regulation  of  their  civil  institutions,  adopted  for  inter- 
nal government,  and  that  the  instrument  they  have  given  us  is  not 
to  be  so  construed."  The  present  case,  we  think,  comes  within 
this  limitation.  We  have  held,  not,  however,  without  strong  op- 
position at  times,  that  this  clause  protected  a  corporation  in  its 
charter  exemptions  from  taxation.  While  taxation  is  in  general 
necessary  for  the  support  of  government,  it  is  not  part  of  the  gov- 
ernment itself.  Government  was  not  organized  for  the  purposes 
of  taxation,  but  taxation  may  be  necessary  for  the  purposes  of  gov- 
ernment. As  such,  taxation  becomes  an  incident  to  the  exercise  of 
the  legitimate  functions  of  government,  but  nothing  more.  No 
government  dependent  on  taxation  for  support  can  bargain  away 
its  whole  power  of  taxation,  for  that  would  be  substantially  abdi- 
cation.    All  that  has  been  determined  thus  far  is,  that  for  a 


STOXE   V.   MISSISSIPPI.  377 

consideration  it  may,  in  the  exercise  of  a  reasonable  discretion, 
and  for  the  pubhc  good,  surrender  a  part  of  its  powers  in  this 
particular. 

But  the  power^f  governing  is  a  trust  committed  by  the  people  to 
the  government,  no  part  of  which  can  be  granted  away.  The 
people,  m  their  sovereign  capacity,  have  established  their  agencies 
for  the  preservation  of  the  public  health  and  the  public  morals,  and 
the  protection  of  public  and  private  rights.  These  several  agencies 
can  govern  according  to  their  discretion,  if  within  the  scope  of  their 
general  authority,  while  in  power;  but  they  cannot  give  away  nor 
sell  the  discretion  of  those  that  are  to  come  after  them,  in  respect  to 
matters  the  government  of  which,  from  the  very  nature  of  things, 
must  "  vary  with  varying  circumstances."  They  may  create  cor- 
porations, and  give  them,  so  to  speak,  a  limited  citizenship;  but  as 
citizens,  limited  in  their  privileges,  or  otherwise,  these  creatures  of 
the  government  creation  are  subject  to  such  rules  and  regulations 
as  may  from  time  to  time  be  ordained  and  established  for  the  pres- 
ervation of  health  and  morality. 

The  contracts  which  the  Constitution  protects  are  those  that 
relatelQ  property  rights,  not  governrnentah — it  is  not  always  easy 
to  tell  on  which  side  of  the  line  which  separates  governmental  from 
property  rights  a  particular  case  is  to  be  put;  but  in  respect  to 
lotteries  there  can  be  no  difficulty.  They  are  not,  in  the  legal  ac- 
ceptation of  the  term,  mala  in  se,  but,  as  we  have  just  seen,  may 
properly  be  made  viala  prohibita.  They  are  a  species  of  gambling, 
and  wrong  in  their  influences.  They  disturb  the  checks  and  bal- 
ances of  a  well-ordered  community.  Society  built  on  such  a  foun- 
dation would  almost  of  necessity  bring  forth  a  population  of 
speculators  and  gamblers,  hving  on  the  expectation  of  what,  "by 
the  casting  of  lots,  or  by  lot,  chance,  or  otherwise,"  might  be 
"  awarded  "  to  them  from  the  accmnulations  of  others.  Cer- 
tainly the  right  to  suppress  them  is  governmental^  to  Vie  everriser]^ 
at  all  times  bv  those  in  power^  at  their  discretion.  Any  one,  there- 
fore,  who  accepts  a  lottery  charter  does  so  with  the  implied  under- 
stancUng  tnat  tne  people,  m  their  sovereign  capacitj^,  and  through 
their  properly  constit_utecl  agencies,  may  resume  it  at  any  time 
when  the  public  good  shall  require,  whether  it  be  paid  for  or  not . 
Allthat  one  can  get  by  such  a  charter  is  a  suspension  of  certain 
goverrmiental  rightsin  his  favor,  subject  to  withdrawal  at  will.  JIa 
has  in  legal  effect  nothing  more^than  a  license  to  enjoy  the  privilege 
on  the  ternis~hamed  for  the  specified  time,  unless  it  be  sooner  abro- 


378  THE  CONTRACT  CLAUSE. 

gated  by  the  sovereign  power  of  the  state.  It  is  a  permit,  good  as 
against  existing  laws,  but  subject  to  future  legislative  and  consti- 
tutional control  or  withdrawal. 

On  the  whole,  we  find  no  error  in  the  record. 

Judgment  affirmed.^ 


PENNIMAN'S  CASE. 
Supreme  Court  of  the  United  States.    1881. 

[103  United  Slates,  714.]  2 

Error  to  the  Supreme  Court  of  Rhode  Island. 

Tweedle,  a  creditor  of  a  Rhode  Island  manufacturing  corpora- 
tion, recovered  a  judgment  against  the  company  at  a  time  when  the 
General  Statutes  of  Rhode  Island,  chap.  142,  sect.  20,  provided  that 
"  whenever  the  stockholders  of  any  manufacturing  company  shall 
be  liable,  by  the  provisions  of  this  chapter,  to  pay  the  debts  of  such 
company,  .  .  .  their  persons  and  property  may  be  taken  therefor 
on  any  writ  of  attachment  or  execution,  issued  against  the  company 
for  such  debt,  in  the  same  maimer  as  on  writs  and  executions  issued 
against  them  for  their  individual  debts."  Penniman  was  a  stock- 
holder; and,  in  accordance  with  this  provision,  the  sheriff,  holding 
the  execution  and  finding  no  goods  or  chattels  of  the  corporation 
or  of  Penniman,  arrested  Penniman  and  committed  him  to  jail. 
WhiU^  PftmuwmiLWfl.s  in  the  jail,  the  General  Assembly,  on  Mar. 
27, 1877,  passed  an  act  containing,  among  other  provisions,  the  fol- 
lowing: ''Sect.  1.  No  person  shall  hereafter  be  imprisoned,  or  be 
continued  in  prison,  nor  shall  the  property  of  any  such  person  be 
attached,  upon  an  execution  issued  upon  a  judgment  obtained 
agamst  a  corporation  of  which  such  person  is  or  was  a  stockholder." 
Penniman  did  not  take  or  offer  to  take  the  poor-debtor's  oath, 
which  would  have  entitled  him  to  discharge  from  imprisonment; 
but  he  apphed  to  the  Supreme  Court  of  the  state  for  release  under 
the  statute  just  now  quoted.  The  discharge  was  opposed  by 
Tweedle  on  the  ground  that  this  statute  impaired  the  obligation  of 
the  judgment  upon  which  the  commitment  was  made  and  of  the 

1  Compare  New  Orleans  v.  Houston,  119  U.  S.  265  (1886).  —Ed. 

2  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


penniman's  case.  379 

contract  on  which  the  judgment  was  founded.  The  Supreme 
Court  of  the  state  gave  judgment  that  Penniman  be  discharged 
from  custody;  and  he  was  discharged  accordingly. 

B.  F.  Thurston,  in  support  of  the  judgment;  and  H.  N.  Shepard, 
contra. 

Woods,  J.,  deUvered  the  opinion  of  the  court.  .  .  . 

It  is  only  necessary  to  consider  that  part  of  sect.  1  of  the  act 
above  recited  which  relieves  a  party  from  imprisonment  upon  the 
execution.  Penniman  invokes  that  provision  and  no  other.  He 
was  merely  relieved  from  imprisonment,  and  it  is  that  and  that  only 
of  which  Tweedle  complains.  Statutes  that  are  constitutional  in 
part  only  will  be  upheld,  so  far  as  they  are  not  in  conflict  with  the 
Constitution,  provided  the  allowed  and  the  prohibited  parts  are 
severable.  (Packet  Company  v.  Keokuk,  95  U.  S.  80.)  So  that  if 
so  much  of  the  section  under  conside?ation  as  relieves  a  debtor 
from  imprisonment  for  debt  is  constitutional  and  can  be  severed 
from  the  other  parts  of  the  enactment,  the  judgment  of  the  Su- 
preme Court  of  Rhode  Island  should  be  affirmed. 

That  part  of  the  section  which  relates  to  the  imprisorunent  of  the 
debtor,  and  that  which  relates  to  the  seizure  of  his  property,  are 
entirely  distinct  and  independent,  and  either  one  can  st^nd  and  be 
operative,  though  the  other  should  be  declared  void.  We  may, 
then,  in  deciding  this  case,  consider  sect.  1  as  if  it  read:  "  No  per- 
son shall  hereafter  be  imprisoned,  or  be  continued  in  prison,  .  .  . 
upon  an  execution  issued  upon  a  judgment  obtained  against  a  cor- 
poration of  which  such  person  is  or  was  a  stockholder." 

The  only  question,  therefore,  which  we  are  called  on  to  decide  is 
whether  this  provision,  enacted  after  the  recovery  of  the  judgment 
against  the  corporation,  by  virtue  of  which  the  defendant  in  error 
was  imprisoned,  is  a  law  which  impairs  the  obligation  of  contracts. 

In  other  words.  Can  a  state  legislature  pass  a  law  abolishing  im- 
prisonment for  debt  on  contracts  made  or  judgments  rendered  when 
imprisonment  of  the  debtor  was  one  of  the  remedies  to  which  his 
creditor  was  by  law  entitled  to  resort  ? 

This  court  has  repeatedly  and  pointedly  answered  this  question 
in  the  affirmative.  .  .  . 

In  Sturges  v.  Cro^minshield  (4  Wheat,  122)  this  court,  speaking 
by  Mr.  Chief  Justice  Marshall,  said :  "  The  distinction  between  the 
obligation  of  a  contract  and  the  remedy  given  by  the  legislature  to 
enforce  that  obligation,  has  been  taken  at  the  bar  and  exists  in  the 
nature  of  things.  Without  impairing  the  obUgation  of  the  con- 
tract  the  remedy  may  certainly  be  modifiedTas  the  wisdom  of  the 


380  THE  CONTRACT  CLAUSE. 

nation  shall  direct.  Confinement  of  the  debtor  may  be  a  punish- 
5nent  for  not  performing  his  contract,  or  may  be  allowed  as  a  means 
of  inducing  him  to  perform  it.  But  the  state  may  refuse  to  inflict 
this  punishment,  or  may  withhold  this  means  and  leave  the  con- 
tract in  full  force.  Imprisonment  is  no  part  of  the  contrac-t,  and_ 
simply  to  release  the  prisoner  does  not  impair  its  obhgation." 

The  precise  question  raised  in  this  case  came  before  this  court  in 
Mason  v.  Haile,  12  Id.  370.  .  .  . 

The  court  said:  "  Can  it  be  doubted  but  the  legislatures  of  the 
states,  so  far  as  relates  to  their  own  process,  have  a  right  to  abolish 
imprisonment  for  debt  altogether,  and  that  such  law  might  extend 
to  present  as  well  as  future  imprisonment  ?  We  are  not  aware  that 
such  a  power  in  the  states  has  ever  been  questioned.  And  if  such 
a  general  law  would  be  valid  under  the  Constitution  of  the  United 
States,  where  is  the  prohibition  to  be  found  that  denies  to  the  State 
of  Rhode  Island  the  right  of  applying  the  same  remedy  to  indi- 
vidual cases.  .  .  .  Such  laws  merely  act  on  the  remedy,  and  that 
in  part  only.  They  do  not  take  away  the  entire  remedy,  but  only 
so  far  as  imprisonment  forms  a  part  of  such  remedy."  .  .  . 

Mr.  Justice  Washington  dissented  from  the  opinion  in  the  case, 
but  concurred  in  so  much  as  related  to  the  discharge  of  the  defend- 
ant from  imprisonment.  He  remarked :  "  It  was  stated  in  Sturges 
V.  Crowninshield  that  imprisonment  of  the  debtor  forms  no  part  of 
the  contract,  and,  consequently,  that  a  law  which  discharges  his 
person  from  imprisonment  does  not  impair  its  obligation.  This  I 
admit,  and  the  principle  was  strictly  applicable  to  a  contract  for 
money.  ...  I  admit  the  rights  of  a  state  to  put  an  end  to  im- 
prisonment for  debt  altogether." 

So  in  Beers  v.  Haughton  (9  Pet.  329),  this  court  said:  "There  is 
no  doubt  that  the  legislature  of  Ohio  possessed  full  constitutional 
authority  to  pass  laws  whereby  insolvent  debtors  should  be  re- 
leased or  protected  from  arrest  or  imprisonment  of  their  persons 
on  any  action  for  any  debt  or  demand  due  by  them.  The_nghtto 
imprison  constitutes  no  part  of  the  contract,  and  the  discharge^f 
the  persoiTuf  lh(;^paiLjM!iuni  hnprisomncnt ttoes  naflmpai£jthe 
obligation  of  the  contract,  but  leaves  it  in  full  force  against  his 
property  and  effects."  (P.  359.  See  also  Von  Hoffman  v.  City  of 
Quincy,  4  Wall.  535,  and  Tennessee  v.  Sneed,  96  U.  S.  69.) 

The  general  doctrine  of  this  cdurt  on  this  subject  may  be  thus 
stated :  In  modes  of  proceeding  and  forms  to  enforce  the  contract 
the  legislature  has  the  control,  and  mayenb^ge^Tjmit^  or  alter 
thern^  provided  it_dr'esrnnt  dpny  a  rnmnrlyTyr  so  embarrass  it  with_ 


GREENWOOD    V.    FREIGHT    COMPANY.  381 

conditions  or  restrictions  as  serio^asbltpJinjmLr  ihejv:aJLue^^ 
rigHTTTBf^Hionir^inzIe,  1  How.  311;  Von  Hoffman  v.  City  of 
Quincy,  supra;  Tennessee  v.  Sneed,  supra.) 

The  result  of  the  decisions  of  this  court  above  quoted  is  that  the 
abolition  of  imprisonment  for  debt  is  not  of  itself  such  a  change  in 
the  remedy  as  impairs  the  obUgation  of  the  contract. 

Judgment  affirmed. 


GREENWOOD  v.  FREIGHT   COMPANY. 
Supreme  Court  of  the  United  States.     1882. 

[105  United  States,  13.]  ^ 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Massachusetts. 

Greenwood,  a  citizen  of  New  York  and  stockholder  in  the  Mar- 
ginal Freight  Railroad  Company,  brought  a  bill  against  the  Union 
Freight  Railroad  Company  and  the  Marginal  Freight  Railroad 
Company,  both  being  Massachusetts  corporations,  the  city  of  Bos- 
ton, its  mayor  and  aldermen  by  name,  and  the  directors  of  the 
Marginal  Freight  Railroad  Company  —  all  citizens  of  ISIassachu- 
setts.  The  Marginal  Freight  Railroad  Company  was  organized 
under  an  act  of  the  Massachusetts  legislature  of  1807  to  build  and 
operate  a  railroad  through  various  streets  of  Boston.  In  1872  an 
act  of  the  legislature  incorporated  the  Union  Freight  Railroad 
Companv,  authorized  it  to  take  the  track,  or  any  part  thereof,  of 
the  Marginal  Freight  Railroad  Company  or  of  any  other  street 
railroad,  on  payment  of  compensation,  and  repealed  the  act  incor- 
porating the  Alarginal  Freight  Railroad  Company.  By  the  act  of 
1872  and  a  vote  of  the  board  of  aldermen  the  new  company  was 
authorized  to  run  its  track  through  the  same  streets  and  over,  the 
same  ground  covered  by  the  older  one.  The  bill,  in  addition  to 
these  facts,  averred  that  the  directors  of  the  old  company  refused 
to  take  steps  to  protect  the  company  against  the  act  of  1872,  and 
that  the  new  company  was  about  to  proceedjmdeLthe  act  in  such 
way  aslolHi^rthe  TOn2plainanrs_stoc^^  and  it  pjiayed 

an^nj  miction.     On  d^nurrer,  the  Circuit  Court  dismissed  the  bill. 

1  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


382  THE  CONTRACT  CLAUSE. 

G.  F.  Edmunds  and  A.  B.  Wentworth,  for  appellant;  and  D.  E. 
Ware  and  W.  G.  Russell,  contra. 

Miller,  J.,  delivered  the  opinion  of  the  court,  ... 

As  none  of  the  defendants  are  charged  with  a  purpose  to  exercise 
any  power  or  to  perform  any  acts  not  authorized  by  the  terras  of 
the  act  of  May  6,  1872,  the  remaining  question  to  be  decided  is, 
whether  the  features  of  that  act  to  which  complainant  objects  in 
his  bill  are  beyond  the  power  of  the  legislature  of  Massachusetts, 
or  are  forbidden  by  anything  in  the  Constitution  of  the  United 
States. 

These  exercises  of  power  in  the  statute  complained  of  are  divis- 
ible into  two :  — 
•     1.   The  repeal  of  the  charter  of  the  Marginal  Company. 

2.  The  authority  vested  in  the  Union  Company  to  take  its  track 
for  the  use  of  the  latter  company. 

It  is  the  argument  of  counsel,  pressed  upon  us  with  much  vigor, 
that  the  two  taken  together  constitute  a  transfer  of  the  property  of 
the  one  corporation  to  the  other,  and  with  it  all  the  corporate  fran- 
chises, rights,  and  powers  belonging  to  the  elder  corporation. 

We  are  not  insensible  to  the  force  of  the  argument  as  thus  stated; 
and  we  think  it  must  be  conceded  that,  according  to  the  unvarying 
decisions  of  this  court,  the  unconditional  repeal  of  the  charter  of 
the  Marginal  Company  is  void  under  the  Constitution  of  the 
United  States,  as  impairing  the  obligation  of  the  contract  made  by 
the  acceptance  of  the  charter  between  the  corporators  of  that  com- 
pany and  the  state,  unless  it  is  made  valid  by  that  provision  of  the 
General  Statutes  of  Massachusetts,  called  the  reservation  clause, 
concerning  acts  of  incorporation;  or  unless  it  falls  within  some  en- 
actment covered  by  that  part  of  its  own  charter  which  makes  it 
"  subject  to  all  the  duties,  restrictions,  and  liabilities  set  forth  in 
the  general  laws,  which  now  are  or  may  hereafter  be  in  force,  re- 
lating to  street-railway  corporations,  so  far  as  they  may  be  appli- 
cable." 

The  first  of  these  reservations,of  legislative  power  over  corpora- 
tions is  found  in  sect.  41  of  chap.  68  of  the  General  Statutes  of 
Massachusetts,  in  the  following  language:  '^  Every  act  of  incor- 
poration passed  after  the  eleventh  day  of  March ,  in  thp  ypa.r 
one""^|Iiousand  eight  hundred  and  thirty-one,  shall  be  subject  to 
amendment,  alteration,  or  repeal,  at  the  pleasure  of  the  legisla- 

tureT'  ' 

'  it  would  be  difficult  to  supply  language  more  comprehensive  or 
expressive  than  this. 


GREENWOOD    V.    FREIGHT   COMPANY.  383 

Such  an  act  may  be  amended;  that  is,  it  may  be  changed  by 
additions  to  its  terms  or  by  quahfications  of  the  same.  It  may  be 
altered  by  the  same  power,  and  it  may  be  repealed.  What  is  it 
may  be  repealed  ?  It  is  the  act  of  incorporation.  It  is  this  organic 
law  on  which  the  corporate  existence  of  the^  cofTTpany^  depends 
'which  may  be  repealed,  so  that  it  shall  cease  lo  belTlaw;  or  the 
legislature  may  adopt  the  milder  course  oFamending  the  law  in 
matters  which  need  amendment,  or  altering  it  when  it  needs  sub- 
stantial change.  All  this  may  be  done  at  the  pleasure  of  the  legis- 
lature. That  body  need  give  no  reason  for  its  action  in  the  matter. 
The  validity  of  such  action  does  not  depend  on  the  necessity  for  it, 
or  on  the  soundness  of  the  reasons  which  prompted  it.  This  ex- 
pression, "  the  pleasure  of  the  legislature,"  is  significant,  and  is  not 
found  in  many  of  the  similar  statutes  in  other  states. 

This  statute  having  been  the  settled  law  of  Massachusetts,  and 
representing  her  policy  on  an  important  subject  for  nearly  fifty 
years  before  the  incorporation  of  the  Marginal  Company,  we  can- 
not doubt  the  authority  of  the  legislature  of  Massachusetts  to 
repeal  that  charter.  Nor  is  this  seriously  questioned  by  counsm 
for  appellant;  and  it  mav.  therefore,  be  assumed  that  if  the  repeal- 
in^jdniMg  of  thp  nrt  of  Mpy  ^^  ^^'^'^-  stood  alone,  its  validityjnugt 
be.  concedsd^  Crease  v.  Babcock,  23  Pick.  (Mass.),  334;  Erie  & 
N.  E.  Railroad  Co.  v.  Casey,  26  Pa.  St.  287;  Pennsylvania  College 
Cases,  13  Wall.  190;  2  Kent,  Com.  306. 

It  is  argued,  however,  that  the  act  is  to  be  examined  as  a  whole, 
and  that  as  the  earlier  sections  of  the  statute  bestow  upon  the 
Union  Company  the  right  to  seize  the  track  and  other  property  of 
the  Marginal  Company,  this  repealing  clause  is  inserted  merely  to 
aid  in  the  general  purpose  of  transferring  a  valuable  property  and 
its  appurtenant  franchise  from  one  corporation  to  another. 

Whether  this  is  sufficient  to  invalidate  that  branch  or  feature  of 
the  statute  may  depend  somewhat  upon  the  effect  of  the  repealing 
clause  upon  the  rights  of  the  Marginal  Company,  as  well  as  upon 
other  matters;  but  we  do  not  doubt  the  validity  of  the  repealing 
clause  of  that  act,  whatever  may  have  been  the  reasons  which  in- 
fluenced the  legislature  to  enact  it,  for  the  exercise  of  this  power  is 
by  express  terms  declared  to  be  at  the  pleasure  of  the  legislature 

What  is  the  effect  of  the  repeal  of  the  charter  of  a  corporation 

like  this  ? 

One  obvious  effect  of  the  repeal  of  a  statute  is  that  it  no  longer 
exists.  Its  Hfe  is  at  an  end.  Whatever  force  the  law  may  give  to 
transactions  into  which  the  corporation  entered  and  which  were 


384  THE  CONTRACT  CLAUSE. 

authorized  by  the  charter  while  in  force,  it  can  originate  no  new 
transactions  dependent  on  the  power  conferred  by  the  charter.  If 
the  corporation  be  a  bank,  with  power  to  lend  money  and  to  issue 
circulating  notes,  it  can  make  no  new  loan  nor  issue  any  new  notes 
designed  to  circulate  as  money. 

If  the  essence  of  the  grant  of  the  charter  be  to  operate  a  railroad, 
and  to  use  the  streets  of  the  city  for  that  purpose,  it  can  no  longer 
so  use  the  streets  of  the  city,  and  no  longer  exercise  the  franchise  of 
running  a  railroad  in  the  city.  In  short,  "  whatever  power  is  de- 
pendent  solely  upon  the  grant  of  the  charter,  and  which  could  not 
be  exercisedlyy  unincorporated  private  persons  under  the  general 
laws  of  the  slateTjs^abrogated  by  the  "repeal  of  the  law  which 
grantedThese  speciaX,rights. ' ' 

T^sntifll  and  rp.q.l  property  flx^quJred  by  the  corporation  during, 
it^  la^wfuT  existence."  rights  of'contract.  or  choses  in  Ration  so  ac- 
quired,  and  which  do  not  in  their  nature  depend  uponjthegeneral 
powers  conferred  by  the  charter,  are  not  destroy e(rby"such  "TTe- 
•peaTi_and  the  courts  may,  if  the  legislature~does"nDlrprovido  oome 
special  remedy,  enforce  such  rights  by  the  means  within  their 
power.  The  rights  of  the  shareholders  of  such  a  corporation,  to 
their  interest  in  its  property,  are  not  annihilated  by  such  a  repeal, 
and  there  must  remain  in  the  courts  the  power  to  protect  those 
rights. 

And  while  we  are  conscious  that  no  definition,  at  once  com- 
prehensive and  satisfactory,  can  be  here  laid  down  of  what  those 
rights  and  powers  are  that  remain  to  the  stockholders  and  the 
creditors  of  such  a  corporation  after  the  act  of  repeal,  we  are  of 
opinion  that  the  foregoing  observations  are  sufficient  for  the  case 
before  us. 

A  short  reference  to  the  origin  of  this  reservation  of  the  right  to 
repeal  charters  of  corporations  may  be  of  service  in  enabling  us  to 
decide  upon  its  office  and  effect  when  called  into  operation  by  the 
legislative  exercise  of  the  power. 

As  early  as  1806,  in  the  case  of  Wales  v.  Stetson,  2  Mass.  143, 
the  Supreme  Court  of  that  state  made  the  declaration  "  that  the 
rights  legally  vested  in  all  corporations  camiot  be  controlled  or  de- 
stroyed by  any  subsequent  statute,  unless  a  power  for  that  purpose 
be  reserved  to  the  legislature  in  the  act  of  incorporation."  In 
Trustees  of  Dartmouth  College  v.  Woodward,  4  Wheat.  518,  de- 
cided in  1819,  this  court  announced  principles  on  the  subject  of  the 
protection  that  the  charters  of  private  corporations  were  entitled 
to  claim,  under  the  clause  of  the  federal  Constitution  against  im- 


GREENWOOD    V.    FREIGHT    COMPANY.  385 

pairing  the  obligation  of  contracts,  which,  though  received  at  the 
time  with  some  dissatisfaction,  have  never  been  overruled  in  this 
court.  The  opinion  in  that  case  carried  the  protection  of  the  con- 
stitutional provision  somewhat  in  advance  of  what  had  been  decided 
in  Fletcher  v.  Peck,  6  Cranch,  87,  and  the  preceding  cases,  and  held 
that  it  applied  not  only  to  contracts  between  individuals,  and  to 
grants  of  property  made  by  the  state  to  individuals  or  to  corpora- 
tions, but  that  the  rights  and  franchises  conferred  upon  private  as 
distinguished  from  public  corporations  by  the  legislative  acts  under 
which  their  existence  was  authorized,  and  the  right  to  exercise 
the  functions  conferred  upon  them  by  the  statute,  were,  when 
accepted  by  the  corporators,  contracts  which  the  state  could  not 
impair. 

It  became  obvious  at  once  that  many  acts  of  incorporation  which 
had  been  passed  as  laws  of  a  public  character,  partaking  in  no  gen- 
eral sense  of  a  bargain  between  the  states  and  the  corporations 
which  they  created,  but  which  yet  conferred  private  rights,  were  no 
longer  subject  to  amendment,  alteration,  or  repeal,  except  by  the 
consent  of  the  corporate  body,  and  that  the  general  control  which 
the  legislatures  creating  such  bodies  had  previously  supposed  they 
had  the  right  to  exercise,  no  longer  existed.  It  was,  no  doubt,  with 
a  view  to  suggest  a  method  by  which  the  state  legislatures  could 
retain  in  a  large  measure  this  important  power,  without  violating 
the  provision  of  the  federal  Constitution,  that  Mr.  Justice  Story, 
in  his  concurring  opinion  in  the  Dartmouth  College  case,  suggested 
that  when  the  legislature  was  enacting  a  charter  for  a  corporation, 
a  provision  m  the  statute  reserving  to  the  legislature  the  right  to 
amend  or  repeal  it  must  be  held  to  be  a  part  of  the  contract  itself, 
and  the  subsequent  exercise  of  the  right  would  be  in  accordance 
\Vrth  the  contract,  and  could  not,  therefore,  impair  it,^  nhlinrafir.^^ 
And  he  cites  with  approval  the  observations  we  have  already 
quoted  from  the  case  of  Wales  v.  Stetson,  2  Mass.  143. 

It  would  seem  that  the  states  were  not  slow  to  avail  themselves 
of  this  suggestion,  for  while  we  have  not  time  to  examine  their  legis- 
lation for  the  result,  we  have  in  one  of  the  cases  cited  to  us  as  to  the 
effect  of  a  repeal  (McLaren  v.  Pemiington,  1  Paige  (N.  Y.),  102),  in 
which  the  legislature  of  New  Jersey,  when  chartering  a  bank  with  a 
capital  of  $400,000  in  1824,  declared  by  its  seventeenth  section  that 
it  should  be  lawful  for  the  legislature  at  any  time  to  alter,  amend, 
and  repeal  the  same.  And  Kent  (2  Com.  307),  speaking  of  what  is 
proper  in  such  a  clause,  cites  as  an  example  a  charter  by  the  New 
York  legislature,  of  the  date  of  Feb.  25,  1822.     HoiLlaiigthe  legis-. 


386  THE  CONTRACT  CLAUSE.        , 

latiire  of  Massachusetts  continued  to  rely  on  a  special  reservation 
of  this  power  in  each  charter  as  it  was  granted,  it  is  unnecessary  to 
"Inquire,  forln  183lTt-enacted  as  a4arvrTr<^'gpript^l  application,  that 
all  charters  of  corporations  thereafter  granted  should  be  subject  to 
•gnreildmentT^aiteratlon,  and"  repeal  at  the  pleasure  of  the  legisla- 
ture,  and  such  has  been  the  law  ever  since. 

This  history  of  the^servation  clauseln  acts  of  incorporation 
supports  our  proposition,  that  whatever  right,  franchise,  or  power 
in  the  corporation  depends  for  its  existence  upon  the  granting 
clauses  of  the  charter,  is  lost  by  its  repeal. 

This  view  is  sustained  by  the  decisions  of  this  court  and  of  other 
courts  on  the  same  question.  Pennsylvania  College  Cases,  supra; 
Tomlinson  v.  Jessup,  15  Wall.  454;  Railroad  Company  v.  Maine, 
96  U.  S.  499;  Sinking  Fund  Cases,  99  id.  700;  Railroad  Company 
V.  Georgia,  98  id.  359;  McLaren  v.  Pennington,  supra;  Erie  &  N.  E. 
Railroad  v.  Casey,  supra;  Miners'  Bank  v.  United  States,  1  Greene 
(Iowa),  553;  2  Kent,  Com.  306,  307. 

It  results  from  this  view  of  the  subject  that  whatever  right  re- 
mained in  the  Marginal  Company  to  its  rolling-stock,  its  horses,  its 
harness,  its  stables,  the  debts  due  to  it,  and  the  funds  on  hand,  if 
any,  it  no  longer  had  the  right  to  run  its  cars  through  the  streets,  or 
any  of  the  streets,  of  Boston.  It  no  longer  had  the  right  to  cumber 
these  streets  with  a  railroad  track  which  it  could  not  use,  for  these 
belonged  by  law  to  no  person  of  right,  and  were  vested  in  defend- 
ants  only  by  virtue  of  the  repealed  charter. 

It  was,  therefore,  in  the  power  of  the  Massachusetts  legislature 
to  gTaitt  to  anotlier  corporation,  as  it  did,  the  authority  to  operate 
a  street^ailroad  through  the  same  streets  and  over  the  same  groun^ 
previously  occupied  by  the  Marginal  Company.  .  .  . 

In  regard  to  the  whole  question  discussed  as  to  the  mode  of  mak- 
ing compensation,  and  its  sufficiency  to  indemnify  the  Marginal 
Company  for  what  is  taken,  it  seems  to  us  to  be  premature;  for 
whenever  the  attempt  to  adjust  the  compensation  is  made,  the 
question  of  its  sufficiency  and  its  compliance  with  the  law  on  that 
subject  may  arise,  and  it  can  then  be  decided. 

Nor  are  we  satisfied  of  the  soundness  of  the  argument  of  counsel 
that  the  clause  in  the  Marginal  Company's  charter,  which  declares 
it  to  be  subject  to  the  restrictions  and  liabilities  contained  in  the 
general  laws  relating  to  street  railways,  withdraws  it  from  the  oper- 
ation of  the  forty-first  section  of  chapter  68  of  the  General  Laws  of 
the  State.  The  latter  clause  declares  all  acts  of  incorporation  sub- 
ject to  its  provisions.     This  subjection  is  not  impaired  by  the  fact 


MA'i'NARD    V.    HILL. 


387 


that  a  particular  corporation  is  made  by  its  charter  subject  to  other 
laws  also  of  a  general  character. 

We  are  of  opinion  that  the  question  of  the  repeal  of  the  charter  of 
the  ^Marginal  Company  is  to  be  decided  by  the  construction  of  the 
general  statute,  whose  effect  and  history  we  have  discussed.  .  .  . 

Decree  affirmed. 

Gray,  J.,  did  not  sit  in  this  case,  nor  take  any  part  in  deciding  it. 


MAYNARD  r.  HILL. 

Supreme  Court  of  the  L'nited  States.     1888. 

[125  United  States,  190.]  i 

Appeal  from  the  Supreme  Court  of  the  Territory  of  Washington. 

A  suit  in  equity  was  brought  by  the  heirs  of  Lydia  A.  Ma^-nard  to 
compel  a  conveyance  of  land.  Lydia  A.  ]Maynard  had  been  mar- 
ried to  David  S.  Maynard  in  1828.  On  Sept.  16,  1850,  David  S. 
Maj-nard,  ha\ing  left  his  wife  in  Ohio,  took  up  his  residence  in  that 
part  of  the  Territory  of  Oregon  which  later  became  the  Territory  of 
Washington.  Under  the  act  of  Congress  of  Sept^,  185Q,  "  creat- 
ing the  office  of  surveyor  general  of  public  lands  in  Oregon,  .  .  . 
and  to  make  donations  to  the  settlers  of  the  said  public  lands,"  he, 
(jn  Anr.  3.  1852.  settled  upon,  and  claimed  as  a  married  man,  640 
acres.  On  Dec.  22,  1852,  an  act  was  passed  by  the  Legislative 
Assembly  of  the  Territorv  of  Oregon  to  dissolve  his  marriage.  Th e 
wife  had  no  notice  of  the  pendency  of  the  legislative  bill.  On  Jan. 
15,  1853,  the  husband  thus  di\-orced  married  Catherine  T.  Bra- 
shearsT  On  Apr.  30,  1856,  he  made  proof  before  the  register  and 
receiver  of  the  land  office  of  his  residence  upon  and  cultivation  of 
his  claim  for  four  years  from  Apr.  3,  1852.  On  hearings  before  the 
register  and  receiver,  an  appeal  to  the  Commissioner  of  the  General 
Land  Office,  and  an  appeal  to  the  Secretary  of  the  Interior,  it  was 
ultimately  decided  that  David  S.  ]\Ia\Tiard  was  entitled  to  a  certif- 
icate for  the  west  half  and  that  neither  wife  was  entitled  to  a  cer- 
tificate for  the  east  half,  the  Secretary  holding  that  at  the  time  of 

-  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


dOO  THE  CONTRACT  CLAUSE. 

the  divorce  the  husband  had  only  an  inchoate  right,  and  the  first 
wife  no  vested  interest  accordingly,  and  that  the  second  wife,  not 
having  been  married  on  Dec.  1,  1850,  or  within  a  year  thereafter, 
was  not  entitled  to  one-half  of  the  donation  claim  according  to  the 
terms  of  the  statute.  Subsequently,  the  defendants,  with  full 
knowledge  of  the  rights  of  the  first  wife,  acquired  through  the  Gen- 
eral Land  Office  interests  in  the  east  half.  The  bill  alleged  the 
foregoing  facts  and  also  that  the  first  wife  died  in  1879,  intestate; 
and  it  prayed  that  the  defendants  be  adjudged  trustees  for  the 
heirs  and  be  directed  to  convey  to  them.  A  demurrer  to  the  bill 
for  failing  to  state  cause  of  action  was  sustained  by  the  court  below 
and  by  the  Supreme  Court  of  Washington  Territory, 

C.  H.  Hanford  and  Henry  Beard,  for  appellants;  and  Walter  H. 
Smith,  for  appellee. 

Field,  J.,  .  .  .  dehvered  the  opinion  of  the  court.  .  .  . 

Two  questions  are  presented  for  our  consideration :  first,  was  the 
act  of  the  Legislative  Assembly  of  the  Territory  of  Oregon  of  the 
22d  of  December,  1852,  declaring  the  bonds  of  matrimony  between 
David  S.  Maynard  and  his  wife  dissolved,  valid  and  effectual  to 
divorce  the  parties;  and,  second,  if  valid  and  effectual  for  that 
purpose,  did  such  divorce  defeat  any  rights  of  the  wife  to  a  portion 
of  the  donation  claim. 

The  act  of  Congress  creating  the  Territory  of  Oregon,  and  es- 
tablishing a  government  for  it,  passed  on  the  14th  of  August,  1848, 
vested  the  legislative  power  and  authority  of  the  territory  in  an 
Assembly,  consisting  of  two  boards,  a  Council  and  a  House  of 
Representatives.  9  Stat.  323,  c.  177,  §  4.  It  declared,  §  6,  that  the 
legislative  power  of  the  territory  should  "  extend  to  all  rightful 
subjects  of  legislation  not  inconsistent  with  the  Constitution  and 
laws  of  the  United  States,"  but  that  no  law  should  be  passed  inter- 
fering with  the  primary  disposal  of  the  soil;  that  no  tax  should  be 
imposed  upon  the  property  of  the  United  States;  that  the  property 
of  non-residents  should  not  be  taxed  higher  than  the  property  of 
residents;  and  that  all  the  laws  passed  by  the  Assembly  should  be 
submitted  to  Congress,  and  if  disapproved  should  be  null  and  of  no 
effect.  It  also  contained  various  provisions  against  the  creation  of 
institutions  for  banking  purposes,  or  with  authority  to  put  into 
circulation  notes  or  bills,  and  against  pledging  the  faith  of  the 
people  of  the  territory  to  any  loan.  .  .  . 

What  were  "  rightful  subjects  of  legislation  "  when  these  acts 
organizing  the  territories  were  passed,  is  not  to  be  settled  by  refer- 
ence to  the  distinctions  usually  made  between  legislative  acts  and 


MAYISTARD    V.    HILL.  389 

such  as  are  judicial  or  administrative  in  their  character,  but  by  an 
examination  of  the  subjects  upon  which  legislatures  had  been  in  the 
practice  of  acting  with  the  consent  and  approval  of  the  people  they 
represented.  ...  It  will  be  found  from  the  history  of  legislation 
that,  whilst  a  general  separation  has  been  observed  between  the 
different  departments,  so  that  no  clear  encroachment  by  one  upon 
the  province  of  the  other  has  been  sustained,  the  legislative  depart- 
ment, when  not  restrained  by  constitutional  provisions  and  a  regard 
for  certain  fundamental  rights  of  the  citizen  w^hich  are  recognized 
in  this  country  as  the  basis  of  all  government,  has  acted  upon  every- 
thing within  the  range  of  civil  government.  Loan  Association  v. 
Topeka,  20  Wall.  655,  663.  Every  subject  of  interest  to  the  com- 
munity has  come  under  its  direction.  It  has  not  merely  prescribed 
rules  for  future  conduct,  but  has  legalized  past  acts,  corrected  de- 
fects in  proceedings,  and  determined  the  status,  conditions,  and 
relations  of  parties  in  the  future.  .  .  . 

When  this  country  was  settled,  the  power  to  grant  a  divorce  from 
the  bonds  of  matrimony  was  exercised  by  the  Parliament  of  Eng- 
land. The  ecclesiastical  courts  of  that  country  w^ere  limited  to  the 
granting  of  divorces  from  bed  and  board.  Naturally,  the  legis- 
lative assemblies  of  the  colonies  followed  the  example  of  Parliament 
and  treated  the  subject  as  one  within  their  province.  Anduntil  a 
recent  period  legislative  divorces  have  been  granted,  with  few  ex- 
ceptions,  in  all  the  states.  .  .  . 

Theadoption  of  late  years  in  many  constitutions  of  provisions 
prohibiting  legislative  divorces  would  also  indicate  a  general  con- 
viction  that  without  this  prohibition  such  divorces  might  be 
granted7  notwithstanding  the  separation  of  the  powers  of  govern- 
ment into  departments  by  which  judicial  functions  are  excluded 
from  the  legislative  department.  There  are,  it  is  true,  decisions  of 
state  courts  of  high  character,  like  the  Supreme  Court  of  Massachu- 
setts and  of  Missouri,  holding  differently;  some  of  which  were 
controlled  by  the  peculiar  language  of  their  state  constitutions. 
Sparhawk  v.  Sparhawk,  116  Mass.  315;  State  v.  Fry,  4  Missouri, 
120,  138.  The  weight  of  authority,  however,  is  decidedly  in  favQr 
of  the  position  that,  in  the  absence  of  direct  prohibition,  the  power 
over  divorces  remainswith  the  legislature.  We  are,  therefore', 
justified  in  holding — more,  we  are  compelled  to  hold,  that  the  grant- 
ing of  divorces  was  a  rightful  subject  of  legislation  according  to  the 
pre vailmg  judicial  opinion  of  the  comitry,  and  the  understanding  of 
the  profession,  at  the  time  the  organic  act  of  Oregon  was  passed 
by  Congress,  w^hen  either  of  the  parties  divorced  was  at  the  time 


390  THE  CONTRACT  CLAUSE. 

a  resident  within  the  territorial  jurisdiction  of  the  legislature.  If 
within  the  competency  of  the  Legislative  Assembly  of  the  terri- 
tory, we  cannot  inquire  into  its  motives  in  passing  the  act  granting 
the  divorce;  its  will  was  a  sufficient  reason  for  its  action.  One  of 
the  parties,  the  husband,  was  a  resident  within  the  territory,  and 
as  he  acted  soon  afterwards  upon  the  dissolution  and  married  again, 
we  may  conclude  that  the  act  was  passed  upon  his  petition.  If  the 
Assembly  possessed  the  power  to  grant  a  divorce  in  any  case,  its 
jurisdiction  to  legislate  upon  his  status,  he  being  a  resident  of  the 
territory,  is  undoubted,  unless  the  marriage  was  a  contract  within 
the  prohibition  of  the  federal  Constitution  against  its  impairment 
by  legislation,  or  within  the  terms  of  the  Ordinance  of  1787,  the 
privileges  of  which  were  secured  to  the  inhabitants  of  Oregon  by 
their  organic  act,  questions  which  we  will  presently  consider.  .  .  . 
The  organic  act  extends  the  legislative  power  of  the  territory  to 
all  rightful  subjects  of  legislation  "  not  inconsistent  with  the  Con- 
stitution and  laws  of  the  United  States."  The  only  inconsistency 
suggestedjs^that  it  impairs  the  obligation  of  the  contract  of  mar- 
riage.  Assuming  that  the  prohibition  ot  tne  tecleral  Constitution 
against  the  impairment  of  contracts  by  state  legislation  applies 
equally,  as  would  seem  to  be  the  opinion  of  the  Supreme  Court  of 
the  territory,  to  legislation  by  territorial  legislatures,  we  are  clear 
that  marriage  is  not  a  contract  within  the  meaning  ofthe  prohiBi- 

It  is  also  to  be  observed  that,  whilst  marriage  is  often  termed  by 
text  writers  and  in  decisions  of  courts  a  civil  contract  —  generally 
to  indicate  that  it  must  be  founded  upon  the  agreement  of  the 
parties,  and  does  not  require  any  religious  ceremony  for  its  solem- 
nization —  it  is  something  more  than  a  mere  contract.  The  con- 
sent of  the  parties  is  of  course  essential  to  its  existence,  but  when 
the  contract  to  marry  is  executed  by  the  marriage,  a  relation  be- 
tween the  parties  is  created  which  they  camiot  change.  Other 
contracts  may  be  modified,  restricted,  or  enlarged,  or  entirely  re- 
leased upon  the  consent  of  the  parties.  Not  so  with  marriage. 
The  relation  once  formed,  the  law  steps  in  and  holds  the  parties  to 
various  obligations  and  liabilities.  It  is  an  institution,  in  the 
maintenance  of  which  in  its  purity  the  pubhc  is  deeply  interested, 
for  it  is  the  foundation  of  the  family  and  of  society,  without  which 
there  would  be  neither  civilization  nor  progress.  This  view  is  well 
expressed  by  the  Supreme  Court  of  Maine  in  Adams  v.  Pahner,  51 
Maine,  481,  483.  .  .  . 


MAYNARD    V.    HILL.  391 

The  14th  section  of  the  organic  act  of  Oregon  provides  that  the 
inhabitants  of  the  territory  shall  be  entitled  to  all  the  rights,  privi- 
leges, and  advantages  granted  and  secured  to  the  people  of  the 
territory  of  the  United  States  northwest  of  the  river  Ohio  by  the 
articles  of  compact  contained  in  the  ordinance  of  July  13,  1787,  for 
the  government  of  the  territory.  The  last  clause  of  article  tAvo  of 
that  ordinance  declares  "  that  no  law  ought  ever  to  be  made  or 
have  force  in  ^aid  territory  that  shall  in  any  manner  whatever  inter- 
fere with  or  affect  private  contracts  or  engagements  bona  fide  and 
without  fraud,  previously  formed."  This  clause,  though  thus 
enacted  and  made  applicable  to  the  inhabitants  of  Oregon,  camiot 
be  construed  to  operate  as  any  greater  restraint  upon  legislative 
interference  with  contracts  than  the  provision  of  the  federal  Con- 
stitution. It  was  intended,  like  that  provision,  to  forbid  the  pas- 
sage of  laws  which  would  impair  rights  of  property  vested  under 
private  contracts  or  engagements,  and  can  have  no  application  to 
the  marriage  relation. 

But  it  is  contended  that  Lydia  A.  Maynard,  the  first  wife  of 
David  S.  ]\Iaynard,  was  entitled,  notwithstanding  the  divorce,  to 
the  east  half  of  the  donation  claim.  The  settlement,  it  is  true,  was 
made  by  her  husband  as  a  married  man  in  order  to  secure  the  640 
acres  in  such  case  granted  under  the  donation  act.  9  Stat.  496, 
c.  76.  But  that  act  conferred  the  title  of  the  land  only  upon  the 
settler  who  at  the  time  was  a  resident  of  the  territory,  or  should  be 
a  resident  of  the  territory  before  December  1,  1850,  and  who 
should  reside  upon  and  cultivate  the  land  for  four  consecutive 
years.  .  .  .  The  settler  does  not  become  a  grantee  until  such 
residence  and  cultivation  have  been  had,  by  the  very  terms  of  the 
act.  Until  then  he  has  only  a  promise  ot  a  title,  what  is  sometmies 
vaguely  called  an  inchoate  interest.  ...  In  Hall  v.  Russell,  101 
U.  S.  503,  the  nature  of  the  grant  was  elaborately  discussed,  and  it 
was  held  that  the  title  did  not  vest  in  the  settler  until  the  condi- 
tions were  fully  performed.  ...  In  Vance  v.  Burbank,  101  U.  S. 
514,  521,  the  doctrine  of  the  previous  case  was  reaffirmed,  and  the 
court  added:  **  The  statutory  grant  was  to  the  settler,  but  if  he 
wasmarried  the  donation,  when  perfected,  inured  to  the  benefit  bf 
himself  and  his  wife  in  equal  parts.  The  wife  could  not  be  a  set- 
tler^~J5he  got  nothing  except  through  her  husband." 

When,  therefore,  the  act  was  passed  divorcing  the  husband  and 
wife,  he  had  no  vested  interest  in  the  land,  and  she  could  have  no 
interest  greater  than  his.  Nothing  had  then  been  acquired  by  his 
residence  and  cultivation  which  gave  him  anything  more  than  a 


392  THE    CONTRACT    CLAUSE. 

mere  possessory  right;  a  right  to  remain  on  the  land  so  as  to  en- 
able him  to  comply  with  the  conditions  upon  which  the  title  was  to 
pass  to  him.  After  the  divorce  she  had  no  such  relation  to  him  as 
to  confer  upon  her  any  interest  in  the  title  subsequently  acquired 
by  him.  A  divorce  ends  all  rights  not  previously  vested.  Interests 
which  might  vest  in  time,  upon  a  continuance  of  the  marriage  rela- 
^tion,  were^gone.  ATwITe^divorced  has  no  right  oT  dowermhis 
property;  a  husband  divorced  has  no  right  by  the  curtesy  in  her 
lands,  unless  the  statute  authorizing  the  divorce  specially  confers 
such  right. 

It  follows  that  the  wife  was  not  entitled  to  the  east  half  of  the 
donation  claim.  To  entitle  her  to  that  half  she  must  have  con- 
tinued his  wife  durmg  his  residence  and  cultivation  of  the  land. 
The  judgmentoTlHe  Supreme  CourFof  the  territory  must  there- 
fore be  affirmed;  and  it  is  so  ordered. 

Matthews  and  Gray,  JJ.,  dissented. 

Bradley,  J.,  was  not  present  at  the  argument  and  took  no  part 
in  the  decision. 


MORLEY  V.  LAKE  SHORE  AND   MICHIGAN 
SOUTHERN   RAILWAY   CO. 

Supreme  Court  of  the  United  States.     1892. 
*  [146  United  States,  162.]  i 

Error  to  the  Court  of  Appeals  of  New  York. 

In  the  Supreme  Court  of  New  York  for  the  city  and  county  of  New 
York  a  holder  of  certain  preferred  and  guaranteed  railroad  stock 
brought  suit  to  compel  specific  performance  of  the  contract  with 
him,  and  obtained  a  decree  that  the  Lake  Shore  &  Michigan  South- 
ern Railway  Co.  should  pay  him  out  of  net  earnings  $53,148.88, 
with  interest  thereon  from  entry  of  judgment,  and  that,  in  case  of 
failure  for  thirty  days  to  pay  the  judgment,  the  plaintiff  should 
have  execution  for  S53, 184.88  and  interest.  At  that  time  the 
statutory  rate  of  interest  on  a  judgment  was  seven  per  cent.  The 
decree  was  affirmed  by  the  general  term  of  the  Supreme  Court  of 
New  York  and  by  the  Court  of  Appeals;   and  the  judgment  was 

*  A  statement  has  boen  framed  upon  the  opinion  of  the  court.  —  Ed. 


MORLEY   V.    L.    S.    &    M.    S.    RY.    CO.  393 

entered  in  the  office  of  the  county  clerk  on  January  26^  1878.  In 
1879  an  act  was  passed  by  the  legislature,  to  take  effect  January  1, 
1880,  reducing  the  rate  of  interest  to  six  per  cent,  but  providing  that 
"  nothing  herein  contained  shall  be  so  construed  as  to  in  any  way 
affect  any  contract  or  obligation  made  before  the  passage  of  this 
act."  An  execution  was  issued  on  May  21,  1881.  The  company 
on  that  day  paid  to  the  sheriff  $53,184.88,  with  interest  at  seven 
per  cent  until  January  1,  1880,  and  at  six  per  cent  thereafter;  but 
the  sheriff  demanded  such  additional  sum  as  would  cause  the  in- 
terest to  amount  to  seven  per  cent  for  the  entire  time.  Thereupon 
the  company  obtained  a  rule  to  show  cause  why  the  execution 
should  not  be  returned  wholly  satisfied,  or  why  the  judgment 
should  not  be  discharged  of  record,  or  why  the  sheriff  should  not  be 
enjoined  from  making  any  levy  or  sale  under  the  execution.  This 
appUcation  was  denied  by  the  Supreme  Court  of  New  York  at 
special  term.  The  general  term  affirmed  the  denial.  The  Court 
of  Appeals  reversed  the  decision  and  ordered  that  the  motion  be 
granted  (95  N.  Y.  428  and  667). 

L.  Birdseye,  for  plaintiff  in  error;  and  E.  S.  Rapallo,  contra.  On 
reargument:  W.  F.  Upson,  W.  F.  Scott,  and  George  Hoadly,  for 
plaintiff  in  error;  and  E.  S.  Rapallo,  cjntra. 

Shiras,  J.,  delivered  the  opinion  of  the  court.  .  .  . 
The  first  question  we  have  to  consider  is  the  effect  to  be  given  to 
the  saving  clause  contained  in  the  first  section  of  the  act  of  June  20, 
1879,  which  provides  that  nothing  therein  contained  shall  be  so 
construed  as  to  in  any  way  affect  any  contract  or  obligation  made 
before  the  passage  of  that  act.  This  question  is  answered  for  us  by 
the  decision  of  the  Court  of  Appeals  of  New  York  in  this  very  case, 
holding  that  this  saving  clause  is  not  applicable  in  the  case  of  a 
judgment  Hke  the  plaintiff's.  .  .  .  As.suming,  then,  that  the 
statute  in  question  was  correctly  construed  by  the  New  York  court, 
our  only  inquiry  must  be  as  to  the  validity  of  the  statute  itseff,  as 
construed  by  the  state  court.  Did,  then,  the  law  that  changed  the 
rate  of  interest  thereafter  to  accrue  on  a  subsisting  judgment  in- 
fringe a  contract  within  the  meaning  of  the  Constitution  of  the 
United  States  ? 

Before  we  state  the  conclusions  reached  by  this  court,  the  con- 
tention on  behalf  of  the  plaintiff  in  error  may  be  briefly  stated,  as 
follows : 

The  judgment  was  based  on  a  contract,  which,  as  soon  as  it  be- 
came a  cause  of  action  by  the  failure  of  the  defendant  to  comply 
with  its  terms,  began,  under  the  then  existing  law  of  the  state,  to 


394  THE  CONTRACT  CLAUSE. 

draw  interest  at  the  rate  of  seven  per  cent  per  annum,  and,  when 
merged  into  judgment,  was  entitled  to  draw  interest  at  that  rate 
until  paid;  that  such  judgment  was  itself  a  contract  in  the  consti- 
tutional sense;  and  that  the  interest  accruing  and  to  accrue  was  as 
much  a  part  of  the  contract  as  the  principal  itself,  and  equally 
within  the  protection  of  the  Constitution. 

Interest  on  a  principal  sum  may  be  stipulated  for  in  the  contract 
itself,  either  to  run  from  the  date  of  the  contract  until  it  matures, 
or  until  payment  is  made;  and  its  payment  in  such  a  case  is  as 
much  a  part  of  the  obligation  of  contract  as  the  principal,  and 
equally  within  the  protection  of  the  Constitution.  But  if  the  con- 
tract itself  does  not  provide  for  interest,  then,  of  course,  interest 
does  not  accrue  during  the  rumiing  of  the  contract,  and  whether, 
after  maturity  and  a  failure  to  pay,  interest  shall  accrue,  depends 
wholly  on  the  law  of  the  state,  as  declared  by  its  statutes.  If  the 
state  declares  that,  in  case  of  the  breach  of  a  contract,  interest  shall 
accrue,  such  interest  is  in  the  nature  of  damages,  and,  as  between 
the  parties  to  the  contract,  such  interest  will  continue  to  run  until 
payment,  or  until  the  o^vner  of  the  cause  of  action  elects  to  merge  it 
into  judgment. 

After  the  cause  of  action,  whether  a  tort  or  a  broken  contract, 
not  itself  prescribing  interest  till  payment,  shall  have  been  merged 
into  a  judgment,  whether  interest  shall  accrue  upon  the  judgment 
is  a  matter  not  of  contract  between  the  parties,  but  of  legislative 
discretion,  which  is  free,  so  far  as  the  Constitution  of  the  United 
States  is  concerned,  to  provide  for  interest  as  a  penalty  or  liquidated 
damages  for  the  non-payment  of  the  judgment,  or  not  to  do  so. 
When  such  provision  is  made  by  statute,  the  owner  of  the  judgment 
is,  of  course,  entitled  to  the  interest  so  prescribed  until  payment  is 
received,  or  until  the  state  shall,  in  the  exercise  of  its  discretion, 
declare  that  such  mterest  shall  be  changed  or  cease  to  accrue. 
Should  the  statutory  damages  for  non-payment  of  a  judgment  be 
determined  by  a  state,  either  in  whole  or  in  part,  the  owner  of  a 
judgment  will  be  entitled  to  receive  and  have  a  vested  right  in  the 
damages  w^hich  shall  have  accrued  up  to  the  date  of  the  legislative 
change;  but  after  that  time  his  rights  as  to  interest  as  damages  are, 
as  when  he  first  obtained  his  judgment,  just  what  the  legislature 
chooses  to  declare.  He  has  no  contract  whatever  on  the  subject 
with  the  defendant  ui  the  judgment,  and  his  right  is  to  receive,  and 
the  defendant's  obligation  is  to  pay,  as  damages,  just  what  the  state 
chooses  to  prescribe. 


MORLEY   V.    L.    S.    &    M.    S.    RY.    CO.  395 

It  is  contended  on  behalf  of  the  plamtiflf  m  error,  as  stated  above 
that  the  judgment  is  itself  a  contract,  and  includes  within  the  scope 
of  Its  obligation  the  duty  to  pay  interest  thereon.     As  we  have  seen 
It  IS  doubtless  the  duty  of  the  defendant  to  pay  the  interest  that 
shall  accrue  on  the  judgment,  if  such  interest  be  prescribed  by 
statute,  but  such  duty  is  created  by  the  statute,  and  not  by  the 
agreement  of  the  parties,  and  the  judgment  is  not  itself  a  contract 
withm  the  meaning  of  the  constitutional  provision  mvoked  by  the 
plaintiff  m  error.     The  most  important  elements  of  a  contract  are 
wanting.     There  is  no  aggregatio  mentium.     The  defendant  has  not 
voluntarily  assented  or  promised  to  pay.     "  A  judgment  is,  in  no 
sense,  a  contract  or  agreement  between  the  parties."     Wyman  v 
Mitchell,  1  Cowen,  316,  321.     In  McConn  v.  New  York  Central' 
&c..  Railroad,  50  N.  Y.  176,  180,  it  was  said  that  "  a  statute  habil- 
ity  wants  all  the  elements  of  a  contract,  consideration  and  mutual- 
ity, as  well  as  the  assent  of  the  party.     Even  a  judgment  founded 
upon  a  contract  is  no  contract."     In  Bidleson  v.  Whvtel  3  Burrow 
1545,  it  was  held  by  Lord  Mansfield,  after  great  deliberation,  and 
after  consultation  with  all  the  judges,  that  «  a  judgment  is  no  con- 
tract, nor  can  be  considered  in  the  light  of  a  contract:  for  judicium 
redditur  m  invitu?n."  ...     In  Louisiana  v.  New  Orleans,  109  U.  S. 
285,  288,  in  which  it  was  contended  on  behalf  of  an  o\^'ner  of  a  judg- 
ment that  it  was  a  contract,  and  within  the  protection  of  the 
federal  Constitution  as  such,  it  was  said  that  "  the  term  '  contract ' 
is  used  in  the  Constitution  in  its  ordinary  sense,  as  signifying  the 
agreement  of  two  or  more  minds,  for  considerations  proceeding 
from  one  to  the  other,  to  do,  or  not  to  do,  certain  acts.     Mutual 
assent  to  its  terms  is  of  its  very  essence."     Where  the  transaction 
IS  not  based  upon  any  assent  of  parties  it  cannot  be  said  that  any 
faith  is  pledged  with  respect  to  it,  and  no  case  arises  for  the  opera- 
tion of  the  constitutional  prohibition.     Garrison  v.  City  of  New 
York,  21  Wall.  196,  203.     It  is  true  that  in  Louisiana  v.  New  Or- 
leans,  and  m  Garrison  v.  City  of  New  York,  the  causes  of  action 
merged  m  the  judgments  were  not  contract  obligations;    but  in 
both  those  cases,  as  in  this,  the  court  was  dealing  Tvith  the  con- 
tention that  the  judgments  themselves  were  contracts  proprio 
vigore.   ... 

The  well  settled  rule  that  in  a  suit  on  this  New  York  judgment  in 
another  state  the  interest  recoverable  is  that  allowed  by  the  latter 
points  to  the  conclusion  that  such  interest  is  in  the  nature  of  dam- 
ages, and  does  not  arise  out  of  any  contract  between  the  parties- 
for,  as  IS  said  by  Chief  Justice  Marshall  in  Ogden  v.  Saunders   12 


396  THE  CONTRACT  CLAUSE. 

Wheat.  213,  343,  "  if  the  law  becomes  a  part  of  the  contract,  change 
of  place  would  not  expunge  the  condition.  A  contract  made  in 
New  York  would  be  the  same  in  any  other  state  as  in  New 
York,  and  would  still  retain  the  stipulation  originally  introduced 
into  it."  .  .  . 

The  judgment  of  the  New  York  Court  of  Appeals  is  accordingly 

Affirmed. 

Harlan,  J.,  with  whom  concurred  Field  and  Brewer,  JJ., 
dissenting.  .  .  . 


CENTRAL  LAND   COMPANY  v.  LAIDLEY. 

Supreme  Court  of  the  United  States.     1895. 

[159  United  States,  103.]  ^ 

Error  to  the  Supreme  Court  of  Appeals  of  West  Virginia. 

Laidley  brought  ejectment  in  1882,  in  the  Circuit  Court  of 
Cabell  County,  to  recover  land  in  West  Virginia.  Both  parties 
claimed  under  Sarah  H.  G.  Pennybacker,  an  o^ner  of  the  land, 
who,  with  her  husband,  in  1870  executed  a  deed  to  C.  P.  Hunting- 
ton, by  whom  in  1871  the  land  was  conveyed  to  the  Central  Land 
Co.  In  1882  Mrs.  Pennybacker,  then  a  widow,  conveyed  to  Laid- 
ley. At  the  first  trial,  in  1884,  Laidley  requested  the  court  to 
charge  that  the  deed  of  1870  did  not  convey  Mrs.  Pennybacker's 
interest;  but  the  court  refused.  A  verdict  was  returned  for  the 
Central  Land  Co.,  and  judgment  was  rendered  thereon.  On  writ 
of  error,  the  Supreme  Court  of  Appeals  reversed  the  judgment  and 
ordered  a  new  trial,  on  the  ground,  that,  whereas  the  Code  of  West 
Virginia  of  1868,  c.  73,  sect.  4,  said,  that,  in  case  of  a  conveyance  by 
husband  and  wife,  the  wife  must  "  acknowledge  the  same  to  be  her 
act,  and  declare  that  she  had  willingly  executed  the  same,  and 
does  not  wish  to  retract  it,"  the  certificate  as  to  the  deed  of  1870 
said  that  the  husband  acknowledged  it  to  be  his  voluntary  act 
and  deed  and  the  wife  "  acknowledged  that  she  had  willingly 
signed,  sealed,  and  delivered  the  same,  and  wished  not  to  retract 
it."  (30  W.  Va.  505.)  In  1888  the  Central  Land  Co.  filed  in  the 
county  court  a  bill  for  an  injunction  against  further  prosecution  of 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


CENTRAL  LAND  COMPANY  V.    LAIDLEY.  397 

the  action  at  law;  but  that  bill  was  dismissed,  and  on  appeal  the 
dismissal  was  affirmed  by  the  Supreme  Court  of  Appeals.  (32 
W.  Va,  134.)  In  1890,  at  the  second  trial  of  the  action  of  eject- 
ment, the  Central  Land  Co.  requested  the  court  to  charge  that  if 
Huntington  paid  for  the  land,  and  took  possession  of  it,  and,  before 
action  brought,  conveyed  it  to  the  Central  Land  Co.,  which  took 
and  still  held  possession,  then  the  deed  of  1870  was  sufficient  to  pass 
the  title  of  both  husband  and  wife,  by  the  Constitution  of  West 
Virginia  of  1863,  art.  11,  sect.  8,  and  by  the  Code  of  West  Virginia 
of  1868,  c.  73,  sect.  4,  which  section  of  the  Code  was  taken  from  the 
Code  of  Virginia  of  1860  and  was  in  force  in  West  Virginia  before 
the  adoption  of  the  Constitution  of  1863,  and  which  section  had 
received,  before  the  separation  of  West  Virginia,  a  settled  construc- 
tion from  the  Supreme  Court  of  Virginia  in  Hairston  v.  Randolph, 
12  Leigh,  445  (1841),  Siter  v.  McClanachan,  2  Grattan,  280  (1845), 
and  Grove  v.  Zumbro,  14  Grattan,  501  (1858).  The  court  de- 
clined to  give  that  charge,  and  charged  that  the  deed  of  1870  would 
not  convey  the  title  from  a  married  woman.  After  verdict  and 
judgment  for  Laidlej^,  the  Central  Land  Co.  presented  to  the 
Supreme  Court  of  Appeals  a  petition  for  a  writ  of  error,  which  was 
refused,  the  court  believing  the  judgment  to  be  right.  Thereupon 
the  Central  Land  Co.  sued  out  this  writ  of  error,  assigning  these 
errors : — 

1st.  ''  That  the  purchase  of  the  said  land  of  the  said  Penny- 
backers,  and  the  said  deed  conveying  the  same,  became  an  executed 
contract,  which  no  action  of  the  judiciary  of  the  State  of  West  Vir- 
ginia had  any  right,  authority  or  power  to  impair  or  invalidate  by 
changing  the  settled  construction  of  said  section  4  of  chapter  73  of 
the  Code  of  West  Virginia  of  1868." 

2d.  "  That  under  and  by  virtue  of  section  10,  article  1,  of  the 
Constitution  of  the  United  States,  no  state  is  permitted  to  pass  any 
law  impairing  the  obligation  of  contracts;  that  the  statutory  con- 
struction of  the  laws  of  West  Virginia,  as  it  existed  when  the  con- 
tract was  made,  governed  the  rights  of  parties,  and  rights  vested 
under  such  existing  constructions  of  the  then  laws  cannot  be  di- 
vested, under  said  clause  of  the  Constitution  of  the  United  States, 
by  a  subsequent  decision  of  the  state  courts  holding  contracts  in- 
valid that  were  valid  when  made ;  such  decisions  of  the  state  courts 
are  contrary  to  the  Constitution  of  the  United  States." 

3d,  "  Because  there  appears  on  the  record  of  said  cause  a  federal 
question  in  this;  that  the  courts  of  West  Virginia,  in  construing  the 
said  statute  relating  to  deeds  and  acknowledgments  thereof  so  as  to 


398  THE  CONTRACT  CLAUSE. 

invalidate  the  said  deed  to  C.  P.  Huntington,  under  which  your 
petitioner  claims,  changed,  without  legislative  action,  the  settled 
and  established  construction  which  existed  at  the  time  of  the  exe- 
cution and  delivery  of  said  deed,  which  is  contrary  to  the  Constitu- 
tion of  the  United  States;  and  that  there  is  a  federal  question 
raised  by  said  record  in  this;  that  the  said  decision  of  the  Circuit 
Court  of  Cabell  County,  which  undertakes  to  deprive  your  peti- 
tioner of  his  property,  is  without  due  process  of  law,  retroactive  in 
its  effect,  and  unconstitutional." 

Laidley  moved  to  dismiss  the  writ  of  error,  for  want  of  jurisdic- 
tion; and  the  motion  to  dismiss  was  argued  with  the  merits  of  the 
case. 

F.  B.  Enslow  and  others,  for  plaintiff  in  error;  and  W.  E.  Chilton 
and  others,  contra. 

Gray,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  questions  upon  the  merits  of  this  case,  discussed  at  length 
by  counsel,  were  whether  the  Supreme  Court  of  Appeals  of  West 
Virginia  rightly  construed  the  provision  of  the  Code  of  that  state  of 
1868,  which  was,  and  was  admitted  to  be,  in  all  material  respects,  a 
re-enactment  of  the  corresponding  provision  of  the  Code  of  Virginia 
of  1860,  prescribing  the  form  of  acknowledgment  by  a  married  wo- 
man of  a  deed  of  real  estate;  and  whether  the  court  below  gave  a 
construction  of  that  provision  less  favorable  to  the  validity  of  such 
a  deed,  than  had  been  given  to  it  by  its  own  earlier  decisions,  and 
by  the  highest  court  of  Virginia  before  the  creation  of  the  State  of 
West  Virginia.  Those  questions  are  not  free  from  difficulty;  and 
this  court,  before  undertaking  to  pass  upon  them,  must  be  satis- 
fied that  it  has  jurisdiction  to  do  so. 

The  grounds  relied  on  for  invoking  the  appellate  jurisdiction  of 
this  court  are,  in  substance,  that  by  the  decision  of  the  Supreme 
Court  of  Appeals  of  West  Virginia,  without  any  legislative  action, 
the  obligation  of  the  contract  contained  in  the  deed  from  Mr.  and 
Mrs,  Penaybacker  to  Huntington,  the  grantor  of  the  plaintiff  in 
error,  has  been  impaired,  and  the  plaintiff  in  error  has  been  de- 
prived of  its  property  without  due  process  of  law. 

Assuming,  without  deciding,  that  these  grounds  were  sufficiently 
and  seasonably  taken  in  the  courts  of  West  Virginia,  we  are  of 
opinion  that  they  present  no  federal  question. 

In  order  to  come  within  the  provision  of  the  Constitution  of  the 
United  States,  which  declares  that  no  state  shall  pass  any  law  im- 
pairing the  obhgation  of  contracts,  not  only  must  the  obligation  of 
a  contract  have  been  impaired,  but  it  must  have  been  impaired  by 


CENTRAL   LAND    COMPANY    V.    LAIDLEY.  399 

some  act  of  the  legislative  power  of  the  state,  and  not  by  a  decision 
of  its  judicial  department  only. 

The  appellate  jurisdiction  of  this  court,  upon  writ  of  error  to  a 
state  court,  on  the  ground  that  the  obligation  of  a  contract  has 
been  impaired,  can  be  invoked  only  when  an  act  of  the  legislature 
alleged  to  be  repugnant  to  the  Constitution  of  the  United  States 
has  been  decided  by  the  state  court  to  be  valid,  and  not  when  an  act 
admitted  to  be  vahd  has  been  misconstrued  by  the  court.    ■  The 
statute  of  West  Virginia  is  admitted  to  have  been  valid,  whether  it 
did  or  did  not  apply  to  the  deed  in  question;   and  it  necessarily 
follows  that  the  question  submitted  to  and  decided  by  the  state 
court  was  one  of  construction  only,  and  not  of  vahdity.     If  this 
court  were  to  assume  jurisdiction  of  this  case,  the  question  sub- 
mitted for  its  decision  would  be,  not  whether  the  statute  was  repug- 
nant to  the  Constitution  of  the  United  States,  but  whether  the 
highest  court  of  the  state  has  erred  in  its  construction  of  the  statute. 
As  was  said  by  this  court,  speaking  by  ]Mr.  Justice  Grier,  in  such  a 
case,  as  long  ago  as  1847,  "  It  is  the  peculiar  province  and  privilege 
of  the  state  courts  to  construe  their  own  statutes;  and  it  is  no  part 
of  the  functions  of  this  court  to  review  their  decisions,  or  assume 
jurisdiction  over  them  on  the  pretence  that  their  judgments  have 
unpaired  the  obligation  of  contracts.     The  power  delegated  to  us 
is  for  the  restraint  of  unconstitutional  legislation  by  the  states,  and 
not  for  the  correction  of  alleged  errors  committed  by  their  judi- 
ciary."    Commercial  Bank  v.  Buckingham,  5  How.  317,  343 ;  Law- 
ler  V.  Walker,  14  How.  149,  154. 

It  was  said  by  IVIr.  Justice  Miller,  in  delivering  a  later  judgment 
of  this  court:  "  We  are  not  authorized  by  the  Judiciary  Act  to 
review  the  judgments  of  the  state  courts  because  their  judgments 
refuse  to  give  effect  to  valid  contracts,  or  because  those  judgments, 
in  their  effect,  impair  the  obligation  of  contracts.  If  we  did,  every 
case  decided  in  a  state  court  could  be  brought  here,  where  the  party 
settmg  up  a  contract  alleged  that  the  court  had  taken  a  different 
view  of  its  oljligation  to  that  which  he  held."  Knox  v.  Exchange 
Bank,  12  Wall.  379,  383. 

The  same  doctrine  was  stated  by  Mr.  Justice  Harlan,  speaking 
for  this  court,  as  follows:  "  The  state  court  may  erroneously  de- 
termine questions  arising  under  a  contract  which  constitutes  the 
basis  of  the  suit  before  it;  it  may  hold  a  contract  void  which,  in  our 
opinion,  is  vahd;  it  may  adjudge  a  contract  to  be  valid  which,  in 
our  opinion,  is  void;  or  its  interpretation  of  the  contract  may,  in 
our  opinion,  be  radically  wrong;    but,  in  neither  of  such  cases, 


400  THE  CONTRACT  CLAUSE. 

would  the  judgment  be  reviewable  by  this  court  under  the  clause 
of  the  Constitution  protecting  the  obligation  of  contracts  against 
impairment  by  state  legislation,  and  under  the  existing  statutes 
defining  and  regulating  its  jurisdiction,  unless  that  judgment,  in 
terms  or  by  its  necessary  operation,  gives  effect  to  some  provision 
of  the  state  constitution,  or  some  legislative  enactment  of  the  state, 
which  is  claimed  by  the  unsuccessful  party  to  impair  the  obligation 
of  the  particular  contract  in  question."  Lehigh  Water  Co.  v. 
Easton,  121  U.  S.  388,  392. 

Many  other  decisions  of  this  court  to  the  same  effect  are  cited  in 
that  case.  See  also  New  Orleans  Waterworks  v.  Louisiana  Sugar 
Co.,  125  U.  S.  18,  30;  St.  Paul  &c.  Railway  v.  Todd  County,  142 
U.  S.  282;  Bro^\^l  v.  Smart,  145  U.  S.  452;  Wood  v.  Brady,  150 
U.  S.  18. 

The  decisions  cited  by  the  plaintiff  in  error  to  support  the  juris- 
diction of  this  court  in  the  case  at  bar  were  either  cases  in  which  the 
writ  of  error  was  upon  a  judgment  of  a  state  court,  which  gave  effect 
to  a  statute  alleged  to  impair  the  obligation  of  a  contract  made 
before  any  such  statute  existed,  as  in  Louisiana  v.  Pilsbury,  105 
U.  S.  278;  in  Chicago  Ins.  Co.  v.  Needles,  113  U.  S.  574,  and  in 
Mobile  &  Ohio  Railroad  v.  Tennessee,  153  U.  S.  486;  or  else  the 
writ  of  error  was  to  a  Circuit  Court  of  the  United  States,  bringing 
to  this  court  the  whole  case,  including  the  question  how  far  the 
courts  of  the  United  States  should  follow  the  decisions  of  the  high- 
est court  of  the  state,  as  in  Gelpcke  v.  Dubuque,  1  Wall.  175,  205; 
Olcott  V.  Super\dsors,  16  Wall.  678,  690;  Douglass  v.  Pike  Comity, 
101  U.  S.  677,  686;  Anderson  v.  Santa  Anna,  116  U.  S.  356,  361; 
and  other  cases  cited  in  Louisiana  v.  Pilsbury,  105  U.  S.  278,  295. 

The  distinction,  as  to  the  authority  of  this  court,  between  writs 
of  error  to  a  court  of  the  United  States  and  writs  of  error  to  the 
highest  court  of  a  state,  is  well  illustrated  by  two  of  the  earliest 
cases  relating  to  mmiicipal  bonds,  in  both  of  which  the  opinion  was 
delivered  by  Mr.  Justice  Swa^me,  and  in  each  of  which  the  question 
presented  was  whether  the  constitution  of  the  State  of  Iowa  per- 
mitted the  legislature  to  authorize  municipal  corporations  to  issue 
bonds  in  aid  of  the  construction  of  a  railroad.  The  Supreme  Court 
of  the  state,  by  decisions  made  before  the  bonds  in  question  were 
issued,  had  held  that  it  did;  but,  by  decisions  made  after  they  had 
been  issued,  held  that  it  did  not.  A  j  udgment  of  the  District  Court 
of  the  United  States  for  the  District  of  Iowa,  following  the  later 
decisions  of  the  state  court,  was  reviewed  on  the  merits,  and  re- 
versed by  this  court,  for  misconstruction  of  the  constitution  of 


WALLA  WALLA  V.    WALLA  WALLA  WATER  CO.        401 

Iowa.  Gelpcke  v.  Dubuque,  1  Wall.  175,  206.  But  a  writ  of  error 
to  review  one  of  those  decisions  of  the  Supreme  Court  of  Iowa  was 
dismissed  for  want  of  jurisdiction,  because,  admitting  the  constitu- 
tion of  the  state  to  be  a  law  of  the  state,  within  the  meaning  of  the 
provision  of  the  Constitution  of  the  United  States  forbidding  a  state 
to  pass  any  law  impairing  the  obligation  of  contracts,  the  only 
question  was  of  its  construction  by  the  state  court.  Railroad  Co. 
V.  McClure,  10  Wall.  511,  515. 

When  the  parties  have  been  fully  heard  in  the  regular  course  of 
judicial  proceedings,  an  erroneous  decision  of  a  state  court  does  not 
deprive  the  unsuccessful  party  of  his  property  without  due  process 
of  law,  within  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States.  Walker  v.  Sauvinet,  92  U.  S.  90;  Head  v. 
Amoskeag  Co.,  113  U.  S.  9,  26;  Morley  v.  Lake  Shore  Railroad,  146 
U.  S.  162,  171;  Bergmann  v.  Backer,  157  U.  S.  655. 

This  court  therefore  has  no  authority  to  decide  the  main  ques- 
tions, argued  at  the  bar,  whether  the  decision  of  the  Supreme  Court 
of  Appeals  of  West  Virginia,  in  effect,  and  erroneously,  overruled 
the  prior  decisions  of  that  court;  and  of  the  Supreme  Court  of 
Appeals  of  Virginia  before  West  Virginia  became  a  separate  state; 
and  the  writ  of  error  must  be 

Dismissed  for  want  of  jurisdiction. 

Field,  J.,  dissented. 


WALLA  WALLA  v.   WALLA  WALLA  WATER  CO. 

Supreme  Court  of  the  United  States.     1898. 

[172  United  States,  1.] 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Washington. 

By  the  act  incorporating  the  city  of  Walla  Walla  the  legislature 
of  Washington  Territory  gave  the  city  "  power  ...  to  provide 
...  a  sufficient  supply  of  water,"  and  "  to  grant  the  right  to  use 
the  streets  ...  for  the  purpose  of  laying  .  .  .  pipes  intended  to 
furnish  the  inhabitants  .  .  .  with  .  .  .  water,  to  any  persons  or 
association  of  persons  for  a  term  not  exceeding  twenty-five  years, 
.  .  .  provided  .  .  .  that  none  of  the  rights  .  .  .  shall  be  exclu- 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


402  THE  CONTRACT  CLAUSE. 

sive,"  and  enacted  that  the  city  "  shall  have  power  to  erect  and 
maintain  water  works  "  and  "  shall  have  power  to  adopt  proper 
ordinances  for  the  government  of  the  city  "  (Laws  of  1883,  270). 
In  1887  the  city  passed  an  ordinance  granting  to  the  Walla  Walla 
Water  Co.  for  twenty-five  years  the  right  to  lay  and  maintain  water 
pipes  in  the  streets,  the  city  to  have  fire  hydrants  and  the  use  of 
water  for  extinguishing  fires  and  flushing  sewers,  paying  SI 500 
yearly;  and  saying  also  that  "this  contract  shall  be  voidal^le  by 
the  city  ...  so  far  as  it  requires  the  pajancnt  of  money,  upon  the 
judgment  of  a  court  .  .  .  whenever  there  shall  be  a  substantial 
failure  of  such  supply,  or  a  substantial  failure  ...  to  keep 
any  agreement,"  and  that  "  until  such  contract  shall  have  been  so 
avoided,  the  city    .  .  .  shall  not  erect,  maintain  or  become  inter- 
ested in  any  water  works  except  the  ones  herein  referred  to." 
Thereupon  the  company  accepted  the  ordinance,  entered  into  a 
formal  contract  with  the  city,  and  substantially  complied  with  all 
terms  of  the  contract.     In  1893  the  city  passed  an  ordinance  "  to 
provide  for  the  construction  of  a  system  of  water  works."     There- 
upon the  company  brought  in  the  Circuit  Court  of  the  United 
States  a  bill  to  enjoin  the  city  from  erecting  the  system.      The 
answer  was  that  the  contract  was  not  valid  in  so  far  as  it  stipulated 
that  the  city  would  not  erect  or  maintain  or  become  interested  in 
any  system  other  than  that  of  the  company.     On  hearing,  a  per- 
petual injunction  was  decreed  (60  Fed.  957). 

A.  H.  Garland  and  others,  for  appellants;  and  J.  H.  Mitchell, 
contra. 

Brow^n,  J.,  .  .  .  delivered  the  opinion  of  the  court. 
The  demurrer  to  the  plaintiff's  bill  rested  principally  upon  a 
want  of  jurisdiction  of  the  court  in  certain  particulars  hereinafter 
specified.  There  was  confessedly  no  diversity  of  citizenship,  and 
the  case  was  treated  by  the  court  below  as  one  arising  under  the 
Constitution  and  laws  of  the  United  States. 

1.  The  jurisdiction  depends  specifically  upon  the  allegation  in 
the  bill  that  defendants  insist  that  the  contract  of  the  city  with  the 
plaintiff  was  not  a  valid  and  binding  contract,  either  in  respect  to 
the  stipulation  binding  the  city  not  to  erect,  maintain  or  become 
interested  in  any  system  of  water  works  other  than  those  of  the 
plaintiff,  or  in  respect  to  the  stipulation  for  furnishing  water  to 
the  city  by  the  plaintiff;  and  that,  regardless  of  plaintiff's  rights, 
the  city  refuses  to  be  bound  by  the  contract,  and  is  proposing  to 
borrow  money  to  erect  and  maintain  water  works  of  its  own,  and 
become  a  competitor  with  the  plaintiff  for  the  trade  and  custom  of 


WALLA  WALLA  V.    WALLA  WALLA  WATER  CO.        403 

the  consumers  of  water;  .  .  .  and,  in  short,  that  the  proposed 
action  of  the  city  is  in  fraud  of  plaintiff's  rights  under  its  contract 
with  the  city,  and  the  protection  guaranteed  to  it  under  the  Con- 
stitution of  the  United  States. 

These  allegations,  upon  their  face,  raise  a  question  of  the  power 
of  the  city  to  impair  the  obhgation  of  its  contract  with  the  plaintiff 
by  the  adoption  of  the  ordinance  of  June  20,  1893.  The  argument 
of  the  defendant  in  this  connection  is  that  the  action  of  the  city  in 
contractmg  with  the  Water  Company,  and  in  passing  the  ordinance 
of  1893  pro\dding  for  the  erection  of  water  works,  was  not  in  the 
exercise  of  its  sovereignty;  that  in  these  particulars  the  city  was 
not  acting  as  the  agent  of  the  state,  but  was  merely  exercismg  a 
power  as  agent  of  its  citizens,  and  representing  solely  their  pro- 
prietary interests;  that  the  council  in  such  cases,  as  trustee  for  the 
citizens,  stands  hi  the  relation  to  them  as  directors  to  stockholders 
in  a  private  corporation,  acting  solely  as  the  agent  of  the  citizens 
and  nou-ise  as  the  agent  of  the  state;  and,  therefore,  that  neither 
the  state  nor  the  city  as  its  agent  can  be  charged  either  with  the 
making  or  the  impairing  of  the  original  contract;  that  for  these 
reasons  the  Constitution  of  the  United  States  has  no  application  to 
the  case,  the  federal  court  has  no  jurisdiction,  and  the  bill,  upon 
its  achnitted  facts,  presents  only  a  violation  })y  a  citizen  of  the  state 
of  its  contract  ^\^th  another  citizen,  and  the  plaintiff  is  bound  to 
resort  to  the  state  courts  for  its  remedy. 

It  may  be  conceded  as  a  general  proposition  that  there  is  a  sub- 
stantial distinction  between  the  acts  of  a  municipahty  as  the  agent 
of  the  state  for  the  preservation  of  peace,  and  the  protection  of 
persons  and  property,  and  its  acts  as  the  agent  of  its  citizens  for  the 
care  and  improvement  of  the  public  property  and  the  adaptation  of 
the  city  for  the  purposes  of  residence  and  business.  Questions  re- 
specting this  distinction  have  usually  arisen  in  actions  against  the 
municipality  for  the  negligence  of  its  officers,  in  which  its  liability 
has  been  held  to  turn  upon  the  question  whether  the  duties  of  such 
officers  were  performed  in  the  exercise  of  public  functions  or  merely 
proprietary  powers.  It  is  now  sought  to  carry  this  distinction  a 
step  farther,  and  to  hold  that,  if  a  contract  be  made  by  a  city  in  its 
proprietary  capacity,  the  question  whether  such  contract  has  been 
substantially  affected  by  the  subsequent  action  of  the  city  does  not 
present  one  of  unpairment  by  act  of  the  state  or  its  authorized 
agent,  but  one  of  an  ordinary-  breach  of  contract,  by  a  private  party 
and  hence  the  case  does  not  arise  under  the  Constitution  and  laws  of 
the  United  States,  and  the  court  has  no  jurisdiction,  unless  there 


404  THE  CONTRACT  CLAUSE. 

be  the  requisite  diversity  of  citizenship.  How  far  this  distinction 
can  be  carried  to  defeat  the  jurisdiction  of  the  court,  or  the  applica- 
tion of  the  contract  clause,  may  admit  of  considerable  doubt,  if  the 
contract  be  authorized  by  the  charter;  but  it  is  sufficient  for  the 
purposes  of  this  case  to  say  that  this  court  has  too  often  decided  for 
the  rule  to  be  now  questioned,  that  the  grant  of  a  right  to  supply 
gas  or  water  to  a  municipality  and  its  inhabitants  through  pipes 
and  mains  laid  in  the  streets,  upon  condition  of  the  performance  of 
its  service  by  the  grantee,  is  the  grant  of  a  franchise  vested  in  the 
state,  in  consideration  of  the  performance  of  a  public  service,  and 
after  performance  by  the  grantee,  is  a  contract  protected  by  the 
Constitution  of  the  United  States  against  state  legislation  to  impair 
it.  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650, 
660;  New  Orleans  Water  Works  Co.  v.  Rivers,  115  U.  S.  674;  St. 
Tammany  Water  Works  v.  New  Orleans  Water  Works,  120  U.  S. 
64;  Crescent  City  Gas  Light  Co.  v.  New  Orleans  Gas  Light  Co.,  27 
La.  Ann.  138,  147. 

It  is  true  that  in  these  cases  the  franchise  was  granted  directly  by 
the  state  legislature,  but  it  is  equally  clear  that  such  franchises  may 
be  bestowed  upon  corporations  by  the  municipal  authorities,  pro- 
vided the  right  to  do  so  is  given  by  their  charters.  State  legisla- 
tures may  not  only  exercise  their  sovereignty  directly,  but  may 
delegate  such  portions  of  it  to  inferior  legislative  bodies  as,  in  their 
judgment,  is  desirable  for  local  purposes.  .  .  . 

We  know  of  no  case  in  which  it  has  been  held  that  an  ordinance, 
alleged  to  impair  a  prior  contract  with  a  gas  or  water  company,  did 
not  create  a  case  under  the  Constitution  and  laws  of  the  United 
States.  Granting  that,  in  respect  to  the  two  classes  of  cases  above 
mentioned,  responsibilities  of  a  somewhat  different  character  are 
imposed  upon  a  municipality  in  the  execution  of  its  contracts,  our 
attention  has  not  been  called  to  an  authority  where  the  apphcation 
of  the  constitutional  provision  as  to  the  impairment  of  contracts 
has  been  made  to  turn  upon  the  question  whether  the  contract  was 
executed  by  the  city  in  its  sovereign  or  proprietary  capacity,  pro- 
vided the  right  to  make  such  contract  was  conferred  by  the  charter. 
We  do  not  say  that  this  question  might  not  become  a  serious  one ; 
that,  with  respect  to  a  particular  contract,  the  municipality  might 
not  stand  in  the  character  of  a  private  corporation;  but  the  cases 
wherein  the  charter  of  a  gas  or  water  company  has  been  treated  as 
falling  within  the  constitutional  provision,  are  altogether  too 
numerous  to  be  now  questioned  or  even  to  justify  citation.  .  .  . 


WALLA  WALLA  V.    WALLA  WALLA  WATER  CO.       405 

5.  The  argument  that  the  contract  is  void  as  an  attempt  to  bar- 
ter away  the  legislative  power  of  the  city  council  rests  upon  the 
assumption  that  contracts  for  supplying  a  city  with  water  are 
within  the  police  power  of  the  city,  and  may  be  controlled,  man- 
aged or  abrogated  at  the  pleasure  of  the  council.  This  court  has 
doubtless  held  that  the  police  power  is  one  which  remains  con- 
stantly under  the  control  of  the  legislative  authority,  and  that  a 
city  council  can  neither  bind  itself,  nor  its  successors,  to  contracts 
prejudicial  to  the  peace,  good  order,  health  or  morals  of  its  inhabi- 
tants; but  it  is  to  cases  of  this  class  that  these  rulings  have  been 
confined. 

If  a  contract  be  objectionable  in  itself  upon  these  grounds,  or  if  it 
become  so  in  its  execution,  the  municipality  may,  in  the  exercise  of 
its  police  power,  regulate  the  manner  in  which  it  may  be  carried 
out,  or  may  abrogate  it  entirely,  upon  the  principle  that  it  cannot 
bind  itself  to  any  course  of  action  which  shall  prove  deleterious  to 
the  health  or  morals  of  its  inhabitants.  In  such  case  an  appeal  to 
the  contract  clause  of  the  Constitution  is  ineffectual.  .  .  . 

Under  this  power  and  the  analogous  power  of  taxation  we  should 
have  no  doubt  that  the  city  council  might  take  such  measures  as 
were  necessary  or  prudent  to  secure  the  purity  of  the  water  fur- 
nished under  the  contract  of  the  company,  the  pajTnent  of  its  just 
contributions  to  the  public  burdens,  and  the  observance  of  its  o^^ti 
ordinances  respecting  the  manner  in  which  the  pipes  and  mains  of 
the  company  should  be  laid  through  the  streets  of  the  city.  New 
York  V.  Squire,  145  U.  S.  175;  St.  Louis  v.  Western  Union  Tel.  Co., 
148  U.  S.  92;  Laclede  Gas  Light  Co.  v.  Murphy,  170  U.  S.  78.  But 
where  a  contract  for  a  supply  of  water  is  innocuous  in  itself  and  is 
carried  out  with  due  regard  to  the  good  order  of  the  city  and  the 
health  of  its  inhabitants,  the  aid  of  the  police  power  cannot  be  in- 
voked to  abrogate  or  impair  it.  .  .  . 

The  decree  of  the  Circuit  Court  must  be 

Affirmed} 

1  Compare  Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  22  (1906). 

See  Detroit  v.  Detroit  Citizens'  Street  Ry.  Co.,  184  U.  S.  368  (1902).  — Ed. 


406  THE  CONTRACT  CLAUSE. 

McCULLOUGH  v.  VIRGINIA. 
Supreme  Court  of  the  United  States.     1898. 

[172  United  Slates,  102.]  ^ 

Error  to  the  Virginia  Supreme  Court  of  Appeals. 

In  1871  the  general  assembly  of  Virginia,  in  an  act  for  refunding 
the  state  debt,  authorized  the  issue  of  coupon  bonds  and  provided 
that  "  the  coupons  shall  ...  be  receivable  at  and  after  maturity 
for  all  taxes,  debts,  dues  and  demands  due  the  state."  Several 
statutes  were  later  passed  affecting  these  bonds :  among  others,  one 
in  1872  prohibiting  receiving  for  taxes  anything  except  coin,  United 
States  notes,  and  national  bank  notes;  and  one  of  Jan.  14,  1882, 
providing  that  a  taxpayer  seeking  to  use  coupons  in  payment  of 
taxes  should  pay  the  taxes  in  money  and  thereafter  bring  suit  to 
establish  the  genuineness  of  the  coupons,  which  suit,  if  successful, 
would  entitle  him  to  a  return  of  the  money  paid.  In  1892  McCul- 
lough  in  full  compliance  with  the  act  of  Jan.  14,  1882,  brought  suit 
in  the  Circuit  Court  of  the  City  of  Norfolk  to  estabUsh  the  gen- 
uineness of  coupons  tendered  by  him  for  taxes;  and  judgment  was 
rendered  for  him.  The  Supreme  Court  of  Appeals  reversed  the 
judgment  (90  Va.  597). 

R.  L.  Maury  and  others,  for  plaintiff  in  error;  and  A.  J.  Mon- 
tague and  others,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

Perhaps  no  litigation  has  been  more  severely  contested  or  has 
presented  more  intricate  and  troublesome  questions  than  that 
which  has  arisen  under  the  coupon  legislation  of  Virginia.  That 
legislation  has  been  prolific  of  many  cases,  both  in  the  state  and 
federal  courts,  not  a  few  of  which  finally  came  to  this  court.  Hart- 
man  V.  Greenhow,  102  U.  S.  672;  Antoni  v.  Greenhow,  107  U.  S. 
769;  Virginia  Coupon  Cases,  114  U.  S.  269;  Poindexter  v.  Green- 
how, 114  U.  S.  270;  Carter  v.  Greenhow,  114  U.  S.  317,  322;  Moore 
V.  Greenhow,  114  U.  S.  338,  340;  Marye  v.  Parsons,  114  U.  S.  325; 
Barry  v.  Edmunds,  116  U.  S.  550;  Chaffin  v.  Taylor,  116  U.  S.  567, 
571;  Royall  v.  Virginia,  116  U.  S.  572;  Royall  v.  Virginia,  121  U.  S. 
102;  Sands  v.  Edmunds,  116  U.  S.  585;  Stewart  v.  Virginia,  117 
U.  S.  612;  In  re  Ayres,  123  U.  S.  443;  McGahey  v.  Virginia,  135 
U.  S.  662. 

For  the  first  time  in  the  history  of  this  litigation  has  any  appel- 
late court,  either  state  or  federal  distinctly  ruled  that  the  coupon 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MCCULLOUGH   V.    VIRGINIA. 


407 


provision  of  the  act  of  1871  was  void.  After  the  passage  of  the  act 
of  March  7,  1872,  which  in  terms  required  all  taxes  to  be  paid  i 
cash,  the  case  of  Antoni  v.  Wright  came  before  the  Court  of  Appeals 
of  Virginia,  22  Gratt.  833,  and  on  December  13,  1872,  was  decided. 
Elaborate  opinions  were  filed,  and  the  court  held  the  act  of  1871 
valid,  and  the  act  of  1872  void  as  violating  the  contract  embraced 
in  the  coupon  provision  of  the  act  of  1871.  This  decision  was  re- 
affirmed in  Wise  Bros.  v.  Rogers,  24  Gratt.  169,  decided  December 
17,  1873;  Clark  v.  Tyler,  30  Gratt.  134,  decided  April  4,  1878,  and 
again  in  Williamson  v.  Massey,  33  Gratt.  237,  decided  April  29, 
1880.  In  Greenhow  v.  Vashon,  81  Virginia,  336,  decided  January 
14,  1886,  the  act  requiring  school  taxes  to  be  paid  in  cash  was  sus- 
tained, and  such  taxes  excepted  from  the  coupon  contract  on  the 
ground  of  a  specific  command  in  the  state  constitution  in  force  at 
the  time  of  the  passage  of  the  funding  act.  There  was  no  direct 
decision  that  the  coupon  provision  was  entirely  void,  although  the 
intimation  was  clear  that  such  was  the  opinion  of  the  judges  then 
composing  the  court. 

In  this  court  the  decisions  have  been  uniform  and  positive  m 
favor  of  the  validity  of  the  act  of  1871.  .  .  . 

Since  the  decision  of  the  Court  of  Appeals  of  Virginia,  in  Antoni 
V.  Wright,  22  Gratt.  833,  that  the  act  of  1872,  providing  for  the  pay- 
ment of  taxes  in  cash  only  was  unconstitutional,  the  general  as- 
sembly of  Virginia  has  from  time  to  time  passed  acts  tending  to 
embarrass  the  coupon  holder  in  the  exercise  of  the  right  granted  by 
the  funding  act.  ... 

These  refunding  bonds,  amounting  to  many  millions  of  dollars, 
have  passed  into  the  markets  of  the  world,  and  have  so  passed 
accredited,  not  merely  by  the  action  of  the  General  Assembly  of 
the  State  of  Virginia,  but  by  the  repeated  decisions  of  her  highest 
court,  as  well  as  of  this  court,  for  substantially  a  quarter  of  a  cen- 
tury, to  the  effect  that  such  coupon  provision  was  constitutional 
and  binding.  Now,  at  the  end  of  twenty-seven  years  from  the 
passage  of  the  act,  we  are  asked  to  hold  that  this  guarantee  of  value, 
so  fortified  as  it  has  been,  was  never  of  any  validity,  that  the  deci- 
sions to  that  effect  are  of  no  force  and  that  all  the  transactions 
which  have  been  had  based  thereon  rested  upon  nothing.  Such  a 
result  is  so  startling  that  it  at  least  compels  more  than  ordinary 
consideration. 

We  pass,  therefore,  to  a  consideration  of  the  specific  question 
presented  in  this  record.  First.  It  is  insisted  that  the  decision  of 
the  Court  of  Appeals  was  right,  and  that  the  coupon  provision  was 


408  THE  CONTRACT  CLAUSE. 

void.  It  were  a  waste  of  time  to  repeat  all  the  arguments  which 
have  been  heretofore  presented,  and  we  content  ourselves  with 
reiterating  that  which  was  said  by  Mr.  Justice  Bradley,  speaking 
for  the  entire  court,  in  McGahey  v.  Virginia,  135  U.  S.  6G2,  6G8: 
"  This  question,  therefore,  may  be  considered  as  foreclosed  and  no 
longer  open  for  consideration.  It  may  be  laid  down  as  undoubted 
law  that  the  lawful  owner  of  any  such  coupons  has  the  right  to 
tender  the  same  after  maturity  in  absolute  payment  of  all  taxes, 
debts,  dues  and  demands  due  from  him  to  the  state." 

Secondly.  It  is  insisted  that  whatever  may  be  our  own  opinions 
upon  the  case,  we  are  to  take  the  construction  placed  by  the  Court 
of  Appeals  of  Virginia  upon  the  act  as  the  law  of  that  state.  While 
it  is  undoubtedly  the  general  rule  of  this  court  to  accept  the  con- 
struction placed  by  the  courts  of  a  state  upon  its  statutes  and  con- 
stitution, yet  one  exception  to  this  rule  has  always  been  recognized, 
and  that  in  reference  to  the  matter  of  contracts  alk^ged  to  have  been 
impaired.  This  was  distinctly  affirmed  in  Jefferson  Branch  Bank 
V.  Skelly,  1  Black,  436,  443,  in  which  the  court,  speaking  by  Mr. 
Justice  Wayne,  gave  these  reasons  for  the  exception:  "  It  has  never 
been  denied,  nor  is  it  now,  that  the  Supreme  Court  of  the  United 
States  has  an  appellate  power  to  revise  the  judgment  of  the  Su- 
preme Court  of  a  state,  whenever  such  a  court  shall  adjudge  that 
not  to  be  a  contract  which  has  been  alleged,  in  the  forms  of  legal 
proceedings,  by  a  litigant,  to  be  one,  within  the  meaning  of  that 
clause  of  the  Constitution  of  the  United  States  which  inhibits  the 
states  from  passing  any  law  impairing  the  obligation  of  contracts. 
Of  what  use  would  the  appellate  power  be  to  the  litigant  who  feels 
himself  aggrieved  by  some  particular  state  legislation,  if  this  court 
could  not  decide,  independently  of  all  adjudication  by  the  Supreme 
Court  of  a  state,  whether  or  not  the  phraseology  of  the  instrument 
in  controversy  was  expressive  of  a  contract  and  within  the  protec- 
tion of  the  Constitution  of  the  United  States,  and  that  its  obliga- 
tion should  be  enforced,  not\vithstanding  a  contrary  conclusion  by 
the  Supreme  Court  of  a  state  ?  It  never  was  intended,  and  cannot 
be  sustained  by  any  course  of  reasoning,  that  this  court  should,  or 
could  with  fidelity  to  the  Constitution  of  the  United  States,  follow 
the  construction  of  the  Supreme  Court  of  a  state  in  such  a  matter, 
when  it  entertained  a  different  opinion."  The  doctrine  thus  an- 
nounced has  been  uniformly  followed.  Bridge  Proprietors  v.  Ho- 
boken  Company,  1  Wall.  116,  145;  Wright  v.  Nagle,  101  U.  S.  791, 
793;  McGahey  v.  Virginia,  135  U.  S.  664,  667.  ...  See  also 
Douglas  V.  Kentucky,  168  U.  S.  488,  501,  and  cases  cited  therein. 


McCULLOUGH    V.    VIRGINIA.  409 

Thirdly.  It  is  urged  that  our  last  decision,  that  in  McGahey  v. 
Virginia,  supra,  logically  leads  to  the  conclusion  that  the  whole 
coupon  contract  was  void,  and  that  the  Court  of  Appeals  of  Vir- 
ginia rightly  interpreted  the  scope  of  that  decision  when  it  so  held. 
The  argument  of  that  court  is  that  because  the  constitution  of 
Virginia  compels  the  pa>Tnent  of  certain  taxes  in  cash,  and  that 
therefore  the  coupon  contract  cannot  be  enforced  as  against  those 
taxes,  the  whole  contract  must  fail,  the  partial  failure  being  a  vice 
which  enters  into  and  destroys  the  entire  contract.  But  the  court 
overlooks  that  which  was  in  fact  decided  in  the  eight  cases  reported 
under  the  title  of  McGahey  v.  Virginia,  for  while  in  two  of  those 
cases  it  was  held  that  the  coupon  contract  could  not  be  enforced 
against  certain  specific  taxes  and  dues,  it  was  in  others  as  distinctly 
held  that  it  could  be  enforced  in  respect  to  general  taxes.  .  .  . 

Neither  is  the  argument  a  sound  one.  It  ignores  the  difference 
between  the  statute  and  the  contract  and  confuses  the  two  entirely 
distinct  matters  of  construction  and  validity.  The  statute  pre- 
cedes the  contract.  Its  scope  and  meaning  must  be  determined 
before  any  question  will  arise  as  to  the  validity  of  the  contract 
which  it  authorizes.  It  is  elementary  law  that  every  statute  is  to 
be  read  in  the  light  of  the  Constitution.  However  broad  and  gen- 
eral its  language,  it  cannot  be  interpreted  as  extending  beyond 
those  matters  which  it  was  within  the  constitutional  jiower  of  the 
legislature  to  reach.  ... 

Fourthly.  It  is  urged  that  this  court  has  no  jurisdiction  of  this 
case  for  the  reason  that  the  Court  of  Appeals  in  its  opinion  does  not 
consider  the  subsequent  legislation  passed  by  the  state  with  the 
view  of  impairing  the  contract  created  l)y  the  act  of  1871,  but  limits 
itself  to  a  consideration  of  that  act,  and  adjudges  it  void.  In  sup- 
port of  this  proposition  the  rule  laid  down  in  New  Orleans  Water 
Works  Co.  V.  Louisiana  Sugar  Refining  Co.,  125  U.  S.  18,  38,  re- 
affirmed in  Huntington  v.  Attrill,  146  U.  S.  657,  684,  and  Bacon  v. 
Texas,  163  U.  S.  207,  216,  is  cited. 

In  this  last  case  the  doctrine  is  summed  up  in  the  followdng  state- 
ment : 

"  Where  the  federal  question  upon  which  the  jurisdiction  of  this 
court  is  based  grows  out  of  an  alleged  impairment  of  the  obligation 
of  a  contract,  it  is  now  definitely  settled  that  the  contract  can  only 
be  impaired  within  the  meaning  of  this  clause  in  the  Constitution, 
and  so  as  to  give  this  court  jurisdiction  on  writ  of  error  to  a  state 
court,  by  some  subsequent  statute  of  the  state  which  has  been  up- 
held or  effect  given  it  by  the  state  court.      Lehigh  Water  Co.  v. 


410  THE  CONTRACT  CLAUSE. 

Easton,  121  U.  S.  388;  New  Orleans  Water  Works  Co.  v.  Louisiana 
Sugar  Piefining  Co.,  125  U.  S.  18;  Central  Land  Co.  v.  Laidley,  159 
U.  S.  103,  109.  ...  If  the  judgment  of  the  state  court  gives  no 
effect  to  the  subsequent  law  of  the  state,  and  the  state  court  de- 
cides the  case  upon  grounds  independent  of  that  law,  a  case  is  not 
made  for  review  by  this  court  upon  any  ground  of  the  impairment 
of  a  contract.     The  above  cited  cases  announce  this  principle." 

It  is  true  the  Court  of  Appeals  in  its  opinion  only  incidentally 
refers  to  statutes  passed  subsequent  to  the  act  of  1871,  and  places 
its  decision  distinctly  on  the  ground  that  that  act  was  void  in  so 
far  as  it  related  to  the  coupon  contract,  but  at  the  same  time  it  is 
equally  clear  that  the  judgment  did  give  effect  to  the  subsequent 
statutes,  and  it  has  been  repeatedly  held  by  this  court  that  in  re- 
viewing the  judgment  of  the  courts  of  a  state  we  are  not  limited  to 
a  mere  consideration  of  the  language  used  in  the  opinion,  but  may 
examine  and  determine  what  is  the  real  substance  and  effect  of  the 
decision. 

Suppose,  for  illustration,  a  state  legislature  should  pass  an  act 
exempting  the  property  of  a  particular  corporation  from  all  taxa- 
tion, and  that  a  subsequent  legislature  should  pass  an  act  subject- 
ing that  corporation  to  the  taxes  imposed  by  the  city  in  which  its 
property  was  located,  and  that,  on  the  first  presentation  to  the 
highest  court  of  the  state  of  the  question  of  the  validity  of  taxes 
levied  under  and  by  virtue  of  this  last  act,  that  court  should  in 
terms  hold  these  cit}^  taxes  valid  notwithstanding  the  general  clause 
of  exemption  found  in  the  prior  statute.  In  that  event  no  one 
would  question  that  this  court  had  jurisdiction  to  review  such 
judgment,  and  inquire  as  to  the  scope  of  the  contract  of  exemption 
created  by  the  first  statute.  Suppose,  further,  that  this  court 
should  hold  that  the  first  statute  was  valid  and  broad  enough  to 
exempt  from  all  taxation,  city  as  well  as  state,  and  adjudge  the  last 
act  of  the  legislature  void  as  in  conflict  with  the  prior;  and  that 
thereafter  the  city  should  again  attempt  to  levy  taxes  upon  the  cor- 
poration, and  that  upon  a  challenge  of  those  taxes  the  state  court 
should  say  nothing  in  respect  to  the  last  act,  but  simply  rule  that 
the  original  act  exempting  the  property  of  the  corporation  from 
taxation  was  void,  could  it  fairly  be  held  that  this  court  was  with- 
out jurisdiction  to  review  that  judgment,  a  judgment  which  directly 
and  necessarily  operated  to  give  force  and  effect  to  the  last  statute 
subjecting  the  property  to  city  taxes  ?  Could  it  be  said  that  the 
silence  of  the  state  court  in  its  opinion  changed  the  scope  and  effect 
of  the  decision  ?     In  other  words,  can  it  be  that  the  mere  language 


McCULLOUGH   V.    VIRGINIA.  411 

in  which  the  state  court  phrases  its  opinion  takes  from  or  adds  to 
the  j  uriscUction  of  this  court  to  re\'iew  its  judgment  ?  Such  a  con- 
struction would  always  place  it  in  the  power  of  a  state  court  to 
determine  our  jurisdiction.  Such,  certainly,  has  not  been  the  under- 
standing and  such  certainly  would  seem  to  set  at  naught  the  pur- 
pose of  the  federal  Constitution  to  prevent  a  state  from  nulhfying 
by  its  legislation  a  contract  which  it  has  made,  or  authorized  to  be 
made.  .  .  . 

In  the  case  before  us,  after  the  act  of  1871,  and  in  1872,  the  gen- 
eral assembly  passed  an  act  requiring  that  all  taxes  should  be  paid 
in  "  gold  or  silver  coin.  United  States  Treasury  notes,  or  notes  of 
the  national  banks  of  the  United  States;  "  and  again,  in  1882,  a 
further  statute  commanding  tax  collectors  to  receive  in  payment  of 
taxes  "  gold,  silver,  United  States  Treasury  notes,  national  bank 
currency,  and  nothing  else."  This  command  was  re-enacted  in  the 
Code  of  1887.  Under  these  statutes  the  state  demanded  payment 
of  its  taxes  in  money  and  repudiated  its  promise  to  receive  coupons 
in  lieu  thereof.  True,  in  its  opinion,  the  Court  of  Appeals  did  not 
specifically  refer  to  these  statutes,  but  by  declaring  that  the  con- 
tract provided  for  in  the  act  of  1871  was  void  it  did  give  full  force 
and  effect  to  them,  as  well  as  to  the  general  revenue  law  of  the 
state.  Now,  it  is  one  of  the  duties  cast  upon  this  court  by  the 
Constitution  and  laws  of  the  United  States  to  inquire  whether  a 
state  has  passed  any  law  impairing  the  obligation  of  a  prior  con- 
tract. No  duty  is  more  solemn  and  imperative  than  this,  and  it 
seems  to  us  that  we  should  be  recreant  to  that  duty  if  we  should 
permit  the  form  in  which  a  state  court  expresses  its  conclusions  to 
override  the  necessary  effect  of  its  decision. 

It  must  also  be  borne  in  mind  that  this  is  not  a  case  in  which, 
after  a  statute  asserted  to  be  the  foundation  of  a  contract,  acts  are 
passed,  designed  and  tending  to  destroy  or  impair  the  alleged  con- 
tract rights,  and  the  first  time  the  question  is  presented  to  the  high- 
est court  of  the  state  it  takes  no  notice  of  the  subsequent  acts,  but 
inquires  simply  as  to  the  valicUty  of  the  alleged  contract.  Here  it 
appears  that  the  state  courts  had  repeatedly  held  the  act  claimed 
to  create  a  contract  vahd,  and  had  passed  upon  the  vaUdity  of  sub- 
sequent acts  designed  and  calculated  to  destroy  and  impair  the 
rights  given  by  such  contract,  sustaining  some  and  annulhng  others. 
Some  of  those  judgments  had  been  brought  to  this  court,  and  by  it 
the  vaHdity  of  the  original  act  had  been  uniformly  and  repeatedly 
sustained,  and  the  invalidity  of  subsequent  and  conflicting  acts 
adjudged,  and  now  at  the  end  of  many  years  of  litigation,  with 


412  THE  CONTRACT  CLAUSE. 

these  subsequent  statutes  still  standing  on  the  statute  books  unre- 
pealed by  any  legislative  action,  the  state  court,  with  only  a  casual 
reference  to  those  later  statutes,  goes  back  to  the  original  act,  and, 
reversing  its  prior  rulings,  adjudges  it  void,  thus  in  effect  putting 
at  naught  the  repeated  decisions  of  this  court  as  well  as  its  own. 
Under  such  circumstances  it  seems  to  us  that  it  would  be  a  clear 
evasion  of  the  duty  cast  upon  us  l)y  the  Constitution  of  the  United 
States  to  treat  all  this  past  litigation  and  prior  decisions  as  mere 
nullities  and  to  consider  the  question  as  a  matter  de  novo.  It  would 
be  shutting  our  eyes  to  palpal)le  facts  to  say  that  the  Court  of 
Appeals  of  Virginia  has  not  by  this  decision  given  effect  to  these 
subsequent  statutes.  .  .  . 

The  judgment  of  the  Court  of  Appeals  ivill  he  reversed  and  the  case 
remanded  for  further  proceedings  not  ijiconsistent  with  this  opinion. 

Peckham,  J.,  dissenting.  .  .  . 

I  think  that  the  ground  upon  which  the  state  court  has  based  its 
decision  deprives  this  court  of  any  jurisdiction.  .  .  . 


MUHLKER  V.  NEW  YORK  AND  HARLEM 
RAILROAD   CO. 

Supreme  Court  of  the  United  States.     1905. 

[197  United  States,  544.]  i 

Error  to  the  Supreme  Court  of  New  York. 

Muhlker  brought  suit  to  enjoin  the  use  of  an  elevated  railroad 
structure  erected  in  front  of  his  premises  on  Park  Avenue,  New 
York,  unless  paid  for  the  value  of  easements  of  light,  air,  and  access 
appurtenant  to  those  premises.  He  had  purchased  the  property  in 
1888',  and  at  that  time  the  doctrine  of  the  highest  court  of  the  State 
of  New  York,  as  embodied  in  certain  elevated  railroad  cases, 
namely  Story  v.  New  York  Elevated  R.  Co.,  90  N.  Y.  122  (1882), 
and  Lahr  v.  MetropoUtan  Elevated  Ry.  Co.,  104  N.  Y.  268  (1887), 
upheld  such  easements  and  the  right  to  compensation  for  diminu- 
tion by  elevated  railroad  structures.  The  fee  to  the  street 
belonged  to  the  city,  by  dedication  for  street  purposes.      The  ele- 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MUHLKER   V.    NEW   YORK   AND    HARLEM   RAILROAD    CO.        413 

vated  railroad  in  front  of  Muhlker's  premises  was  constructed 
pursuant  to  chapter  339  of  the  Laws  of  1892;  and  it  diminished 
materially  the  rentable  and  usable  value  of  the  premises.  Before 
1872  the  tracks  had  been  upon  the  surface  of  the  street;  and  be- 
tween 1872  and  1874  the  tracks,  in  pursuance  of  chapter  702  of  the 
Laws  of  1872,  had  been  placed  in  a  trench  bounded  by  walls  which, 
immediately  in  front  of  the  premises,  cut  off  access  across  the 
street  until  the  tracks  were  placed  upon  the  elevated  structure 
against  which  an  injunction  was  sought.  Judgment  framed  upon 
that  in  Lewis  v.  New  York  &  Harlem  R.  Co.,  162  N.  Y.  202  (1900), 
was  given  for  Muhlker,  and  was  affirmed  by  the  Appellate  Division. 
The  judgment  was  reversed  by  the  Court  of  Appeals  (173  N.  Y. 
549);  and  the  judgment  of  that  court,  upon  the  remission  of  the 
case,  was  made  the  judgment  of  the  Supreme  Court  of  the  state. 
Thereupon  this  writ  of  error  was  taken. 

Elihu  Root  and  others,  for  plaintiff  in  error ;  and  Ira  A .  Place  and 
Thomas  Emery,  contra. 

McKenna,  J.,  .  .  .  announced  the  judgment  of  the  court  and 
delivered  the  following  opinion.  .  .  . 

In  the  case  at  bar  there  is  a  complete  change  of  ruling  by  the 
Court  of  Appeals.  The  Lewis  case  is  declared,  in  so  far  as  it  ex- 
pressed rights  of  abutting  property  owners,  to  have  been  improvi- 
dent ly  decided,  and  the  elevated  railroad  cases,  which  were  made 
its  support,  were  distinguished.  The  court  rested  its  ruling  on  one 
point,  the  effect  of  the  act  of  1892,  under  which  the  structure  com- 
plained of  was  erected,  the  court  declaring  that  act  a  command  to 
the  railroad  company  in  the  interest  of  the  public;  indeed,  made 
the  state  the  builder  of  the  new  structure  and  the  use  of  it  by  the 
railroads  mere  obedience  to  law.  .  .  .  The  command  of  the  state, 
the  duty  of  the  railroad  to  obey,  may  encounter  the  inviolability  of 
private  property.  And  in  performing  the  duties  devolved  upon  it 
a  railroad  may  be  required  to  exercise  the  right  of  eminent  domain. 
Wisconsin,  Minn.  &  Pac.  R.  R.  v.  Jacobson,  179  U.  S.  287;  see  also 
Mayor  and  Aldermen  of  Worcester  v.  Nor's\ach  and  Worcester  R.  R., 
109  Massachusetts,  103.  We  do  not,  therefore,  solve  the  questions 
in  this  case  by  reference  to  the  power  of  the  state  and  the  duty  of 
the  railroads;  the  rights  of  abutting  property  OA\Tiers  must  be  con- 
sidered, and  against  their  infringement  plaintiff  urges  the  contract 
clause  of  the  Constitution  of  the  United  States  and  the  Fourteenth 
Amendment.  The  latter  is  invoked  because  the  act  of  1892  does 
not  provide  for  compensation  to  property  owners,  and  the  former 
on  account  of  the  conditions  upon  which  the  strip  of  land  constitut- 


414  THE  CONTRACT  CLAUSE. 

ing  the  avenue  was  conveyed  to  the  city.  There  were  two  deeds  to 
the  city,  one  made  in  1825  and  the  other  in  1827.  That  of  1825  was 
stated  to  be  "  in  trust,  nevertheless,  that  the  same  be  appropriated 
and  be  kept  open  as  parts  of  pubUc  streets  and  avenues  forever,  in 
Uke  manner  as  the  other  pubhc  streets  and  avenues  in  said  city  are 
and  of  right  ought  to  be."  The  deed  of  1827  was  also  "  in  trust 
that  the  same  be  left  open  as  pubhc  streets  for  the  use  and  benefit 
of  the  inhabitants  of  said  city  forever."  Plaintiff  derives  from 
Poillon,  grantor  of  the  city  in  the  deed  of  1827,  and  hence  contends 
that  he  is  entitled  to  enforce  the  trust  created  by  Poillon's  deed  to 
the  city.  .  .  .  The  case  is  therefore  presented  to  us  as  to  the  effect 
of  the  deed  of  Poillon  to  the  plaintiff  and  to  the  city  as  constituting 
a  contract,  and  the  effect  of  the  act  of  1892  as  an  impairment  of 
that  contract  or  as  taking  plaintiff's  property  without  due  process 
of  law.  These  questions  were  directly  passed  on  and  negatived  by 
the  Court  of  Appeals.  .  .  . 

The  Lewis  case,  we  have  seen,  was  overruled  by  the  Court  of 
Appeals  in  the  case  at  bar,  while  the  Story  and  Lahr  cases  were  said 
not  to  be  in  point.  We  think  that  the  Lewas  case  was  an  irresistible 
consequence  of  the  others,  and  the  Story  and  Lahr  cases  are  in 
point  and  decisive.  .  .  . 

When  the  plaintiff  acquired  his  title  those  cases  were  the  law  of 
New  York,  and  assured  to  him  that  his  easements  of  light  and  air 
were  secured  by  contract  as  expressed  in  those  cases,  and  could  not 
be  taken  from  him  without  payment  of  compensation. 

And  this  is  the  ground  of  our  decision.  We  are  not  called  upon 
to  cUscuss  the  power  or  the  limitations  upon  the  power,  of  the  courts 
of  New  York  to  declare  rules  of  property  or  change  or  modify  their 
decisions,  but  only  to  decide  that  such  power  cannot  be  exercised 
to  take  away  rights  which  have  been  acquired  by  contract  and  have 
come  under  the  protection  of  the  Constitution  of  the  United  States. 
And  we  determine  for  ourselves  the  existence  and  extent  of  such 
contract.  This  is  a  truism ;  and  when  there  is  a  diversity  of  state 
decisions  the  first  in  time  may  constitute  the  obligation  of  the  con- 
tract and  the  measure  of  rights  under  it.  Hence  the  importance  of 
the  elevated  railroad  cases  and  the  doctrine  they  had  pronounced 
when  the  plaintiff  acquired  his  property.  He  bought  under  their 
assurance.  .  .  . 

Judgment  is  reversed  and  cause  remanded  for  further  proceedings 
not  inconsistent  with  this  opinion. 

Brown,  J.,  concurs  in  the  result. 

Holmes,  J.,  dissenting. 


MUHLKER    V.    XEW   YORK   AXD    HARLEM   R.1ILR0AD    CO.        415 

The  plaintiff's  rights,  whether  expressed  in  terms  of  property  or 
of  contract,  are  all  a  construction  of  the  courts,  deduced  by  way  of 
consequence  from  dedication  to  and  trusts  for  the  purposes  of  a 
pubhc  street.  They  never  were  granted  to  him  or  his  predecessors 
in  express  words,  or,  probably,  by  any  conscious  impHcation.  If 
at  the  outset  the  New  York  courts  had  decided  that  apart  from 
statute  or  ex-press  grant  the  abutters  on  a  street  had  only  the  rights 
of  the  pubhc  and  no  private  easement  of  any  kind,  it  would  have 
been  in  no  way  amazing.  .  .  .  Again,  more  narrowly,  if  the  New 
York  courts  had  held  that  an  easement  of  hght  and  air  could  be 
created  only  by  express  words,  and  that  the  la>nng  out  or  dedication 
of  a  street,  or  the  grant  of  a  house  bounding  upon  one,  gave  no  such 
easement  to  abutters,  they  would  not  have  been  alone  in  the  world 
of  the  common  law.  .  .  . 

If  the  decisions,  which  I  say  conceivably  might  have  been  made, 
had  been  made  as  to  the  common  law,  they  would  have  infringed 
no  rights  under  the  Constitution  of  the  United  States.  So  much,  I 
presume,  would  be  admitted  by  every  one.  But  if  that  be  ad- 
mitted, I  ask  myself  what  has  happened  to  cut  doA\Ti  the  power  of 
the  same  courts  as  against  that  same  Constitution  at  the  present 
day.  So  far  as  I  know  the  only  thing  which  has  happened  is  that 
they  have  decided  the  elevated  railroad  cases,  to  which  I  have  re- 
ferred. It  is  on  that  ground  alone  that  we  are  asked  to  review  the 
decision  of  the  Court  of  Appeals  upon  what  otherwise  would  be 
purely  a  matter  of  local  law.  In  other  words,  we  are  asked  to  ex- 
tend to  the  present  case  the  principle  of  Gelpcke  v.  Dubucj[ue,  1  Wall. 
175,  and  Louisiana  v.  Pilsburj^  105  U.  S.  278,  as  to  public  bonds 
bought  on  the  faith  of  a  decision  that  they  were  constitutional^ 
issued.  That  se^ras  to  me  a  great,  unwarranted  and  undesirable 
extension  of  a  doctrine  which  it  took  this  court  a  good  while  to 
explain.  The  doctrine  now  is  ex-plained,  however,  not  to  mean  that 
a  change  in  the  decision  impairs  the  obligation  of  contracts.  Bur- 
gess V.  Seligman,  107  U.  S.  20, 34;  Stanly  County  v.  Coler,  190  U.  S. 
437,  444,  445,  and  certainly  never  has  been  supposed  to  mean  that 
all  property  o\\-ner3  in  a  state  have  a  vested  right  that  no  general 
proposition  of  law  shall  be  reversed,  changed  or  modified  by  the 
courts  if  the  consequence  to  them  vdW  be  more  or  less  pecuniary 
loss.  I  know  of  no  constitutional  principle  to  prevent  the  com- 
plete reversal  of  the  elevated  railroad  cases  to-morrow,  if  it  should 
seem  proper  to  the  Court  of  Appeals.  See  Central  Land  Co.  v. 
Laidley,  159  U.  S.  103. 


416  THE  CONTRACT  CLAUSE. 

But  I  conceive  that  the  plaintiff  in  error  must  go  much  further 
than  to  say  that  my  last  proposition  is  wrong.  I  think  he  must  say 
that  he  has  a  constitutional  right  not  only  that  the  state  courts 
shall  not  reverse  their  earlier  decisions  u]wn  a  matter  of  property 
rights,  but  that  they  shall  not  distinguish  them  unless  the  distinc- 
tiqn  is  so  fortunate  as  to  strike  a  majority  of  this  court  as  sound. 
For  the  Court  of  Appeals  has  not  purported  to  overrule  the  elevated 
railroad  cases.  It  simply  has  decided  that  the  import  and  the  intent 
of  those  cases  does  not  extend  to  the  case  at  bar.  In  those  cases 
the  defendants  had  impaired  the  plaintiff's  access  to  the  street.  It 
is  entirely  possible  and  consistent  wdth  all  that  they  decided  to  say 
now  that  access  is  the  foundation  of  the  whole  matter;  that  the 
right  to  light  and  air  is  a  parasitic  right  incident  to  the  right  to  have 
the  street  kept  open  for  purposes  of  travel,  and  that  when,  as  here, 
the  latter  right  does  not  exist  the  basis  of  the  claim  to  hght  and  air 
is  gone. 

But  again,  if  the  plaintiff  had  an  easement  over  the  whole  street 
he  got  it  as  a  tacit  incident  of  an  appropriation  of  the  street  to  the 
uses  of  the  public.  The  legislature  and  the  Court  of  Appeals  of 
New  York  have  said  that  the  statute  assailed  was  passed  for  the 
benefit  of  the  public  using  the  street,  and  I  accept  their  view.  The 
most  obvious  aspect  of  the  change  is  that  the  whole  street  now  is 
open  to  travel,  and  that  an  impassable  barrier  along  its  width  has 
been  removed,  in  other  words,  that  the  convenience  of  travellers 
on  the  highway  has  been  considered  and  enhanced.  Now  still  con- 
sidering distinctions  which  might  be  taken  between  this  and  the 
earher  cases,  it  was  possible  for  the  New  York  courts  to  hold,  as 
they  seem  to  have  held,  that  the  easement  which  they  had  declared 
to  exist  is  subject  to  the  fullest  exercise  of  the  primary  right  out  of 
which  it  sprang,  and  that  any  change  in  the  street  for  the  benefit  of 
public  travel  is  a  matter  of  pubhc  right,  as  against  what  I  have 
called  the  parasitic  right  which  the  plaintiff  claims.  Scranton  v. 
Wheeler,  179  U.  S.  141;  Gibson  v.  United  States,  166  U.  S.  269. 

The  foregoing  distinctions  seem  to  me  not  wanting  in  good  sense. 
Certainly  I  should  have  been  inclined  to  adopt  one  or  both  of  them, 
or  in  some  way  to  avoid  the  earlier  decisions.  But  I  am  not  dis- 
cussing the  question  whether  they  are  sound.  If  my  disagreement 
was  confined  to  that  I  should  be  silent.  I  am  considering  what  there 
is  in  the  Constitution  of  the  United  States  forbidding  the  Court  of 
Appeals  to  hold  them  sound.  I  think  there  is  nothing;  and  there 
being  nothing,  and  the  New  York  decision  obviously  not  having 


MUHLKER    V.    NEW   YORK   AND    HARLEM    RAILROAD    CO.        417 

been  given  its  form  for  the  purpose  of  evading  this  court,  I 
think  we  should  respect  and  affirm  it,  if  we  do  not  dismiss  the 
case. 

What  the  plaintiff  claims  is  really  propert}^,  a  right  in  rem.  It  is 
called  contract  merely  to  bring  it  within  the  contract  clause  of  the 
Constitution.  It  seems  to  me  a  considerable  extension  of  the 
power  to  determine  for  ourselves  what  the  contract  is,  which  we 
have  assumed  when  it  is  alleged  that  the  obligation  of  a  contract 
has  been  impaired,  to  say  that  we  wall  make  the  same  independent 
determination  when  it  is  alleged  that  property  is  taken  without  due 
compensation.  But  it  seems  to  me  that  it  does  not  help  the  argu- 
ment. The  rule  adopted  as  to  contract  is  simply  a  rule  to  prevent 
an  evasion  of  the  constitutional  hmit  to  the  power  of  the  states, 
and,  it  seems  to  me,  should  not  be  extended  to  a  case  hke  this. 
Bearing  in  mind  that,  as  I  have  said,  the  plaintiff's  rights,  however 
expressed,  are  wholly  a  construction  of  the  courts,  I  cannot  beheve 
that  whenever  the  Fourteenth  Amendment  or  Article  I.,  section  10, 
is  set  up  we  are  free  to  go  behind  the  local  decisions  on  a  matter  of 
land  law,  and,  on  the  ground  that  w^e  decide  what  the  contract  is, 
declare  rights  to  exist  which  we  should  think  ought  to  be  implied 
from  a  dedication  or  location  if  we  were  the  local  courts.  I  cannot 
beheve  that  we  are  at  liberty  to  create  rights  over  the  streets  of 
Massachusetts,  for  instance,  that  never  have  been  recognized 
there.  If  we  properly  may  do  that,  then  I  am  wrong  in  my  assump- 
tion that  if  the  New  York  courts  originally  had  declared  that  the 
laying  out  of  a  public  way  conferred  no  private  rights  we  should 
have  had  nothing  to  say.  But  if  I  am  right,  if  we  are  bound  by 
local  decisions  as  to  local  rights  in  real  estate,  then  we  equally  are 
bound  by  distinctions  and  the  limitations  of  those  rights  declared 
by  the  local  courts.  If  an  exception  were  estabhshed  in  the  case  of 
a  decision  which  obviously  was  intended  to  evade  constitutional 
limits,  I  suppose  I  may  assume  that  such  an  evasion  would  not 
be  imputed  to  a  judgment  which  four  justices  of  this  court  think 
right. 

As  I  necessarily  have  dealt  with  the  merits  of  the  case  for  the 
purpose  of  presenting  my  point,  I  will  add  one  other  consideration. 
Suppose  that  the  plaintiff  has  an  easement  and  that  it  has  been  im- 
paired, bearing  in  mind  that  his  damage  is  in  respect  of  light  and 
air,  not  access,  and  is  inflicted  for  the  benefit  of  public  travel,  I 
should  hesitate  to  say  that  in  inflicting  it  the  legislature  went  be- 
yond the  constitutional  exercise  of  the  police  power.     To  a  certain 


418  THE  CONTRACT  CLAUSE. 

and  to  an  appreciable  extent  the  legislature  may  alter  the  law  of 
nuisance,  although  property  is  affected.  .  .  . 

I  am  authorized  to  say  that  the  Chief  Justice,  Mr.  Justice 
White,  and  Mr.  Justice  Peckham  concur  in  the  foregoing  dis- 
sent. 


AMERICAN  SMELTING  AND  REFINING  CO. 
V.  COLORADO  ex  rel.  Lindsley. 

Supreme  Court  of  the  United  States.     1907. 

[204  United  States,  103.]  ^ 

Error  to  the  Supreme  Court  of  Colorado. 

In  the  District  Court  for  the  County  of  Denver,  a  proceeding  in 
the  nature  of  quo  warranto  was  begun  in  order  to  obtain  a  forfeiture 
of  a  New  Jersey  corporation's  privilege  of  doing  business  in  Colorado. 
The  American  Smelting  and  Refining  Co.  was  incorporated  in  New 
Jersey  on  April  4,  1899.  On  April  28,  1899,  it  applied  to  the  au- 
thorities of  Colorado  for  permission  to  enter  and  transact  business 
in  the  latter  state,  and,  by  filing  a  copy  of  its  certificate  of  incorpo- 
ration and  paying  fees  based  upon  its  capital,  complied  with  the 
statutory  conditions  (Mills,  Annotated  Statutes,  s.  500;  Session 
Laws,  1897,  c.  51,  s.  1).  The  statutes  then  in  force  provided  that 
foreign  corporations,  after  complying  with  conditions  for  entering 
the  state,  "  shall  be  subjected  to  all  the  liabilities,  restrictions  and 
duties  which  are  or  may  be  imposed  upon  corporations  of  like  char- 
acter organized  under  the  general  laws  of  this  state,  and  shall  have 
no  other  or  greater  powers"  (Mills,  Annotated  Statutes,  s.  499). 
The  corporation  immediately  commenced  to  erect  in  Colorado  a 
plant  for  carrying  on  its  business,  and  ultimately  it  invested 
$5,000,000  for  this  purpose.  By  a  statute  of  1901  a  foreign  cor- 
poration was  required  to  obtain  a  certificate  that  it  had  paid  all 
fees  and  taxes,  for  which  certificate  it  was  to  pay  five  dollars  (Ses- 
sion Laws,  1901,  c.  52,  s.  10).  The  corporation  in  1901  complied 
with  the  statute  of  1901,  paid  a  fee  for  increase  in  capitalization, 
and  received  a  certificate,  in  accordance  with  the  terms  of  the 
statute,  that  it  was  "  authorized  to  exercise  any  corporate  power 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


AMERICAN   SMELTING    &    REFINING    CO.    V.    COLORADO.         419 

provided  for  by  law."  In  1902  the  legislature  passed  an  act  as  to 
taxes  (Session  Laws,  1902,  43),  providing  that  domestic  corpora- 
tions must  pay  an  annual  state  corporation  license  tax  of  two  cents 
upon  each  SIOOO  of  capital  stock  (s.  64),  and  that  every  foreign 
corporation  which  had  theretofore  obtained  "  the  right  and  privi- 
lege to  transact  and  carry  on  business  within  .  .  .  the  state  .  .  . 
shall,  in  addition  to  the  teas  and  taxes  now  provided  for  by  law, 
and  as  a  condition  precedent  to  its  right  to  do  any  business  within 
.  .  .  this  state,  pay  annually  .  .  .  a  state  Hcense  tax  of  four  cents 
upon  each  $1000  of  its  capital  stock  "  (s.  65),  and  that  every  cor- 
poration, domestic  or  foreign,  faiUng  to  pay  these  taxes  should  for- 
feit its  right  to  do  business  or  to  sue  in  the  courts,  until  payment 
(s.  66) .  This  corporation  refused  to  pay  this  tax.  The  trial  court, 
in  this  state  of  facts,  decreed  a  forfeiture  of  all  rights  within  Colo- 
rado, until  payment.  On  appeal  the  Supreme  Court  of  Colorado 
affirmed  the  judgment. 

T.  Thacher  and  others,  for  plaintiff  in  error;  and  N.  C.  Miller, 
Attorney  General  of  Colorado,  contra. 

Peckham,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

It  is  conceded  that  the  corporation  has  paid  all  its  indebtedness 
for  taxes  or  otherwise  to  the  State  of  Colorado,  except  the  amount 
demanded  under  the  above-mentioned  law  of  1902,  and  that  it  has 
obeyed  all  the  laws  of  the  state  with  that  exception.  It  is  urged, 
however,  upon  the  part  of  the  corporation  that,  by  its  admission 
into  the  state,  with  its  right  to  do  business  therein  by  the  payment 
of  the  amount  of  money  required  for  such  purpose  under  the  then 
existing  law,  a  contract  between  the  state  and  itself  was  thereby 
made  that  it  should  be  permitted  to  remain  therein  during  the  term 
of  life  which  the  state  by  law  allowed  to  corporations  created  by  it 
(which  was  twenty  years),  wathout  being  again  subjected  to  fur- 
ther exactions  of  money  for  what  it  had  once  paid  for,  viz.,  the  right 
to  remain  and  transact  business  in  that  state.  .  .  . 

The  question,  aside  from  that  of  the  extent  of  the  term,  is 
whether  any  contract  between  the  state  and  the  corporation  arose 
under  these  laws  and  the  facts.  .  .  . 

The  result  of  these  statutes  was  that  the  foreign  corporation, 
upon  filing  the  proper  papers  and  paying  the  statutory  fees  and 
obtaining  the  certificate  to  that  effect  from  the  Secretary  of  State, 
obtained  the  right  to  enter  and  do  business  in  Colorado.  .  .  .  The 
right  obtained  was  a  right  to  enter  the  state  and  do  business 
therein  as  a  corporation.  It  was  also  subject  by  statute  to  the 
liabilities,  restrictions  and  duties  which  were  or  might  thereafter  be 


420  THE  CONTRACT  CLAUSE. 

imposed  upon  domestic  corporations  of  like  character.  Domestic 
corporations  at  tliat  time  had  the  right  to  a  corporate  existence  of 
twenty  years. 

These  provisions  of  law,  existing  when  the  corporation  applied 
for  leave  to  enter  the  state,  made  the  payment  required  and  re- 
ceived its  permit,  amounted  to  a  contract  that  the  foreign  corpora- 
tion so  permitted  to  come  in  the  state  and  do  business  therein, 
while  subjected  to  all,  should  not  be  subjected  to  any  greater  habiU- 
ties,  restrictions  or  duties  than  then  were  or  thereafter  might  be 
imposed  upon  domestic  corporations  of  like  character. 

A  provision  in  a  statute  of  this  nature  subjecting  a  foreign  cor- 
poration to  all  the  habilities,  etc.,  of  a  domestic  one  of  like  character 
must  mean  that  it  shall  not  be  subjected  to  any  greater  liabilities 
than  are  imposed  upon  such  domestic  corporation.  The  power  to 
impose  different  liabilities  was  with  the  state  at  the  outset.  It 
could  make  them  greater  or  less  than  in  case  of  a  domestic  corpora- 
tion, or  it  could  make  them  the  same.  Having  the  general  power 
to  do  as  it  pleased,  when  it  enacted  that  the  foreign  corporation 
upon  coming  in  the  state  should  be  subjected  to  all  the  liabilities  of 
domestic  corporations,  it  amounted  to  the  same  thing  as  if  the 
statute  had  said  the  foreign  corporation  should  be  subjected  to  the 
same  liabilities.  In  other  words  the  liabilities,  restrictions  and 
duties  imposed  upon  domestic  corporations  constitute  the  measure 
and  Hmit  of  the  habihties,  restrictions  and  duties  which  might 
thereafter  be  imposed  upon  the  corporation  thus  admitted  to  do 
business  in  the  state.  It  was  not  a  mere  license  to  come  in  the  state 
and  do  business  therein  upon  payment  of  a  sum  named,  liable  to  be 
revoked  or  the  sum  increased  at  the  pleasure  of  the  state,  without 
further  limitation.  It  was  a  clear  contract  that  the  liabilities,  etc., 
should  be  the  same  as  the  domestic  corporation,  and  the  same  treat- 
ment in  that  regard  should  be  measured  out  to  both.  If  it  were 
desired  to  increase  the  liabilities  of  the  foreign,  it  could  only  be 
done  by  increasing  those  of  the  domestic,  corporation  at  the  same 
time  and  to  the  same  extent. 

Such  being  the  contract,  how  long  was  it  to  last  ?  Only  until 
the  state  chose  to  alter  it  ?  Or  was  it  to  last  for  some  definite  time, 
capable  of  being  ascertained  from  the  terms  of  the  statutes  as  they 
then  existed  ?  It  seems  to  us  that  the  only  limitation  imposed  is 
the  term  for  which  the  corporation  would  have  the  right  to  con- 
tinue in  the  state  as  a  corporation.  One  of  the  restrictions  as  to 
domestic  corporations  is  that  which  limits  its  corporate  fife  to 
twenty  years,  unless  extended  as  provided  by  law.     The  same  re- 


AMERICAN    SMELTING    &    REFINING    CO.    V.    COLORADO-         421 

striction  applies  to  the  foreign  corporation.  Iron  Silver  &c.  Co.  v. 
Covne,  31  Colorado,  450.  Counsel  for  the  state  concedes  that  the 
corporation  was  admitted  for  a  period  of  twenty  years,  but  subject 
to  the  power  of  the  state  to  tax.  During  that  time,  therefore,  the 
contract  lasts.  This  is  the  only  legitimate,  and  we  think  it  is  the 
necessary  implication  arising  from  the  statute. 

This  is  not  an  exemption  from  taxation,  it  is  simply  a  limitation 
of  the  power  to  tax  beyond  the  rate  of  taxation  imposed  upon  a 
domestic  corporation.  Instead  of  such  a  limitation  the  act  of 
1902,  already  referred  to,  imposes  a  tax  or  fee  upon  or  exacts  from 
the  foreign  corporation  double  the  amount  which  is  imposed  upon 
or  exacted  from  the  domestic  one.  The  latter  is  granted  the  right 
to  continue  to  do  business  upon  the  annual  payment  of  two  cents 
upon  each  one  thousand  dollars  of  its  capital  stock,  while  the  former 
must  pay  four  cents  for  the  same  right.  This  cannot  be  done  while 
the  right  to  remain  exists.  It  is  a  violation  of  the  obligation  of  an 
existing  valid  contract.  Home  of  the  Friendless  v.  Rouse,  8  Wall. 
430. 

Nor  is  this  a  case  where  the  power  given  by  the  state  constitution 
to  the  general  assembly  to  alter,  amend  or  annul  a  charter  is  appli- 
cable. The  act  does  not  alter  the  charter  or  annul  or  amend  it.  It 
simply  increases  the  taxation  which  up  to  the  time  of  its  enactment 
had  been  imposed  on  all  foreign  corporations  doing  business  in  the 
state. 

A  discussion  as  to  the  name  or  nature  of  the  tax  imposed  by  the 
act  of  1902,  or  the  former  acts,  is  wholly  unimportant  wdth  reference 
to  the  view  we  take  of  this  case.  After  the  payment  of  the  money 
and  the  receipt  of  the  permit  to  enter  and  do  business  in  the  state 
the  corporation  could  not,  as  we  have  said,  be  thereafter  further 
taxed  than  was  the  domestic  one.  The  tax  on  the  latter  under  that 
act  is  the  same  in  substance  and  effect  as  that  upon  the  foreign  cor- 
poration, but  it  is  for  only  one-half  thereof  in  amount.  The  domes- 
tic must  pay  "  an  annual  state  corporation  license  tax,"  while  the 
foreign  corporation  must  pay  "  a  state  license  tax  "  annually.  The 
means  of  enforcing  pajonent  are  not  different,  and  such  means  are 
stated  in  section  66  of  the  act  of  1902. 

Whatever  be  the  name  or  nature  of  the  tax,  it  must  be  measured 
in  amount  by  the  same  rate  as  is  provided  for  the  domestic  institu- 
tion, and  if  the  latter  is  not  taxed  in  that  way  neither  can  the  state 
thus  tax  the  foreign  corporation. 

It  is  unnecessary  to  refer  to  the  many  cases  cited  by  both  parties 
hereto.     Some  of  them  refer  to  the  question  as  to  the  nature  of  such 


422    .  THE  CONTRACT  CLAUSE. 

a  tax,  while  others  decide,  upon  the  facts  appearing  in  them  whether 
there  was  a  contract  or  not.  As  already  stated,  the  name  of  the 
tax  or  its  kind  is  not  important  so  long  as  it  is  plain  that  the  act  of 
1902  increases  the  liabilities  of  the  foreign  corporation  over  those 
which  obtain  in  the  case  of  the  domestic.  And  in  regard  to  the 
cases  of  contract,  while  the  principle  that  a  contract  may  arise 
from  a  legislative  enactment  has  been  reiterated  times  without 
number,  it  must  always  rest  for  its  support  in  the  particular  case 
upon  the  construction  to  be  given  the  act,  and  in  this  case  we  are 
not  greatly  aided  by  the  former  cases  regarding  taxation  and  legis- 
lative contract.  We  may,  however,  refer  to  the  following  out  of 
many  cases,  regarding  contracts  as  to  taxation:  Miller  v.  The  State, 
15  Wall.  478;  New  York,  Lake  Erie  &  Western  Railroad  Co.  v. 
Pennsylvania,  153  U.  S.  628;  Power,  Auditor,  v.  Detroit  &c.  Rail- 
way Co.,  201  U.  S.  543.  .  .  . 

Reversed. 
Fuller,  C.  J.,  Harlan,  Holmes,  and  Moody,  JJ.,  dissented. 


FRATERNAL  MYSTIC   CIRCLE  v.   SNYDER. 

Supreme  Court  of  the  United  States.     1913. 

[227  United  Stales,  497.]  i 

Error  to  the  Supreme  Court  of  Tennessee. 

Suit  was  brought  in  the  Chancery  Court  of  Tennessee  to  enforce 
payment  of  an  insurance  policy  issued  in  1887  on  the  life  of  C.  C. 
Snyder,  who  died  in  1908.  In  1901  the  legislature  of  Tennessee 
enacted  (Acts  of  1901,  c.  141)  that  insurers  "  in  all  cases  when  a 
loss  occurs  and  they  refuse  to  pay  the  same  within  sixty  days  after 
a  demand  shall  have  been  made,  .  .  .  shall  be  liable  to  pay  the 
holder  of  said  poUcy,  in  addition  to  the  loss  and  interest  thereon,  a 
sum  not  exceeding  twenty-five  per  cent  on  the  liability  for  said  loss; 
Provided,  that  it  shall  be  made  to  appear  to  the  court  or  jury 
trying  the  case  that  the  refusal  to  pay  said  loss  was  not  in  good 
faith,  and  that  such  failure  to  pay  inflicted  additional  expense,  loss 
or  injury  upon  the  holder;  .  .  .  and,  provided,  further,  that  such 

^  A  statement  has  been  framed  upon  the  opinion.  —  Ed.       —  - 


FRATERNAL    MYSTIC    CIRCLE    V.    SXYDER.  423 

additional  liability  wathin  the  limit  prescribed  shall,  in  the  dis- 
cretion of  the  court  or  jury,  ...  be  measured  by  the  additional 
expense,  loss  and  injury  thus  entailed."  The  statute  further 
enacted  that  if  "it  shall  be  made  clear  .  .  .  that  the  action  of  said 
policy  holder  in  bringing  said  suit  was  not  in  good  faith,  and 
recovery  .  .  .  shall  not  be  had,  said  poUcy  holder  shall  be  Uable  to 
such  insurance  companies,  corporations,  firms  or  persons  in  a  sum 
not  exceeding  twenty-five  per  cent  of  the  amount  of  the  loss 
claimed  under  said  policy;  Provided,  that  such  liabiUt}^,  within 
the  limits  prescribed,  shall,  in  the  discretion  of  the  court  or  jury, 
...  be  measured  by  the  additional  expense,  loss  or  injury  in- 
flicted ...  by  reason  of  such  suit."  The  court  gave  judgment 
for  the  holder  of  the  policj^,  and,  finding  that  the  refusal  to  pay  had 
not  been  in  good  faith,  added  to  the  recovery  twenty-five  per  cent, 
in  accordance  with  the  statute,  as  "  reasonable  compensation  and 
reimbursement  "  for  the  "  additional  loss,  expense  and  injury." 
The  Supreme  Court  of  Tennessee  affirmed  the  judgment  (122  Tenn. 
248). 

F.  Zimmerman,  for  plaintiff  in  error;  and  J.  B.  Sizer  and  Robert 
Pritchard,  contra. 

Hughes,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  contention  is  that  the  pro\dsion  for  added  liability  placed  a 
burden  upon  the  assertion  of  the  rights  which  the  contract  secured 
and  thus  in  effect  changed  the  contract  by  allowing  a  recovery  to 
which  the  parties  had  not  agreed  and  which  was  not  sanctioned  by 
the  law  as  it  existed  at  the  time  the  contract  was  made.  Bronson 
V.  Kinzie,  1  How.  311,  317;  Barnitz  v.  Beverly,  163  U.  S.  118; 
Bedford  r.  Eastern  Building  &  Loan  Ass'n,  181  U.  S.  227;  Oshkosh 
Water  Works  Co.  v.  Oshkosh,  187  U.  S.  437,  439.  It  is  pointed  out 
that  in  the  eases  in  which  statutes  have  been  sustained  providing 
for  the  addition  to  the  recovery  of  attorney's  fees  or  damages,  or 
penalties,  the  question  arose  under  the  Fourteenth  Amendment, 
and  that,  so  far  as  they  appfied  to  suits  upon  contracts,  the  latter 
had  been  made  after  the  enactments.  Atchison,  T.  &  S.  F.  R.  R. 
Co.  V.  Matthews,  174  U.  S.  96;  Fidehty  Mutual  Life  Ass'n  v. 
Mettler,  185  U.  S.  308,  322;  Iowa  Life  Insurance  Co.  v.  Lewis,  187 
U.  S.  335,  355;  Farmers'  &c.  Insurance  Co.  v.  Dobney,  189  U.  S. 
301,  304,  305;  Seaboard  Air  Line  Railway  v.  Seegers,  207  U.  S. 
73;  Yazoo  &  Miss.  Valley  R.  R.  Co.  v.  Jackson  Vinegar  Co.,  226 
U.  S.  217.   * 

What,  then,  is  the  effect  of  the  statute  with  respect  topre-ejdsting 
contracts  ?      It  is  at  once  apparent  that  it  does  not  purport  to 


424  THE  CONTRACT  CLAUSE. 

affect  the  obliption  of  the  contract  in  any  way.  It  does  not 
attempt  lo  change  or  to  rendcTuugulury  Ull^'  of  LllU  Wnns  or  condi- 
tions of  the  poHcy  of  insurance,  or  to  reheve  the  insured  from 
compHance  with  any  stipulation  it  contained.  It  does  not  seek 
to  give  a  right  of  action  where  none  would  otherwise  exist  or  to 
deprive  the  company  of  any  defense  it  might  have.  If  the  com- 
pany is  not  liable  according  to  its  contract,  it  is  not  required  to  pay. 
Nor  does  the  statute  permit  a  recovery  of  expenses  or  added 
damages  as  a  mere  consequence  of  success  in  the  suit.  The  ques- 
tion whether  the  state  may  so  provide  as  to  prior  contracts  is  not 
before  us,  and  we  express  no  opinion  upon  it. 

The  statute  is  aimed  not  at  the  rights  secured  by  the  contract 
but,  nt,  Hkhonest  methods  employed  to  defeat  thepi.  Tlie  addi- 
tional liability  is  attached  to  bad  faith  alone..  This  is  the  necessary 
effect  oi  tne proviso,  it  is  only  when  it  is  "made  to  appear  to  the 
court  or  jury  trying  the  case  that  the  refusal  to  pay  said  loss  was 
not  in  good  faith  "  that  the  added  recovery  may  be  had.  It  must 
also  appear  that  such  refusal  inflicted  "  additional  expense,  loss  or 
injury  "  upon  the  policy  holder,  and  it  is  this  further  expense,  loss 
or  injury  that  measures  the  amount  to  be  allowed,  which  is  not  to 
exceed  twenty-five  per  cent  of  the  liability  on  the  policy. 

It  cannot  be  said  that  this  effort  to  give  indemnity  for  the 
injuries  which  would  be  sustained  through  perverse  methods  and 
through  an  abuse  of  the  privileges  accorded  to  honest  litigants 
imposed  a  burden  upon  the  enforcement  of  the  contract.  Neither 
the  contract,  nor  the  existing  law  which  entered  into  it,  contem- 
plated contests  promoted  in  bad  faith  or  justified  the  infliction  of 
loss  by  such  means.  The  state  was  entitled  at  all  times  to  take 
proper  measures  to  prevent  the  perversion  of  its  legal  machinery, 
and  there  was  no  denial  or  burdening  in  any  proper  sense,  of  the 
existing  remedies  applicable  to  the  contract  by  the  demand  that 
they  be  availed  of  bona  fide.  .  .  . 

Judgment  affirmed. 


CHAPTER  II. 

EX  POST  FACTO  LAWS. 

CALDER  and  AVife  v.  BULL  and  Wife. 

Supreme  Court  of  the  United  States.     1798. 

[3  Dallas,  386.] 

In  error  from  the  State  of  Connecticut.  The  cause  was  argued 
at  the  last  term  (in  the  absence  of  the  Chief  Justice  0  and  now 
the  court  delivered  their  opinions  seriatim. 

Chase,  J.  The  decision  of  one  question  determines  (in  my 
opinion)  the  present  dispute.  I  shall,  therefore,  state  from  the 
record  no  more  of  the  case,  than  I  think  necessary  for  the  considera- 
tion of  that  question  only. 

The  Legislature  of  Connecticut,  on  the  2d  Thursday  of  May 

1795,  passed  a  resolution  or  law,  which,  for  the  reasons  assigned, 

set  aside  a  decree  of  the  court  of  Probate  for  Hartford,  on  the  21st  of 

March  1793,  which  decree  disapproved  of  the  will  of   Normand 

Morrison  (the  grandson)  made  the  21st  of  Augu.st  1779,  and  refused 

to  record  the  said  will ;  and  granted  a  new  hearing  by  the  said  Court 

of  Probate,  with  liberty  of  appeal  therefrom,  in  six  months.     A 

new  hearing  was  had,  in  virtue  of  this  resolution,  or  law,  before  the 

said  Court  of  Probate,  who,  on  the  27th  of  July  179.5,  approved  the 

said  will,  and  ordered  it  to  be  recorded.     At  August  1795,  appeal 

was  then  had  to  the  superior  court  at  Hartford,  who  at  February 

term  1796,  affirmed  the  decree  of  the  Court  of  Probate.     Appeal 

was  had  to  the  Supreme  Court  of  Errors  of  Connecticut,  who,  in 

June  1796,  adjudged,  that  there  were  no  errors.      More  than  18 

months  clasped  from  the  decree  of  the  Court  of  Probate  (on  the 

1st  of  March  1793)  and  thereby  Caleb  Bull  and  wife  were  barred 

of  all  right  of  appeal,  by  a  statute  of  Connecticut.     There  was  no 

law  of  that  state  whereby  a  new  hearing,  or  trial,  before  the  said 

Court  of  Probate  might  be  obtained.     Calder  and  wife  claim  the 

premises  in  question,  in  right  of  his  ^\^fe,  as  heiress  of  N.  Morrison, 

physician;  Bull  and  wife  claim  under  the  will  of  N.  Morrison,  the 

grandson. 

1  Hon.  Oliver  Ellsworth.  —  Ed. 


426  EX    POST    FACTO    LAWS. 

The  counsel  for  the  plaintiffs  in  error,  contend,  that  the  said 
resolution  or  law  of  the  Legislature  of  Connecticut,  granting  a  new 
hearing,  in  the  above  case,  is  an  ex  post  facto  law,  prohibited  I)}'  the 
Constitution  of  the  United  States;  that  any  law  of  the  federal 
government,  or  any  of  the  state  governments,  contrary  to  the 
Constitution  of  the  United  States,  is  void;  and  that  this  court 
possesses  the  power  to  declare  such  law  void.  .  .  . 

The  effect  of  the  resolution  or  law  of  Connecticut,  above  stated, 
is  to  revise  a  decision  of  one  of  its  inferior  courts,  called  the  Court 
of  Probate  for  Hartford,  and  to  direct  a  new  hearing  of  the  case 
by  the  same  Court  of  Probate,  that  passed  the  decree  against  the 
w\\\  of  Normand  Morrison.  By  tlie  existing  law  of  Connecticut  a 
right  to  recover  certain  property  had  vested  in  Calder  and  wife 
(the  appellants)  in  consequence  of  a  decision  of  a  court  of  justice, 
but,  in  virtue  of  a  subsequent  resolution  or  law,  and  the  new  hear- 
ing thereof,  and  the  decision  in  consequence,  this  right  to  recover 
certain  property  was  divested,  and  the  right  to  the  property 
declared  to  be  in  Bull  and  wife,  the  appellees.  The  sole  inquirj'- 
is,  whether  this  resolution  or  law  of  Connecticut,  having  such 
operation,  is  an  ex  post  facto  law,  within  the  prohibition  of  the 
federal  Constitution. 

Whether  the  legislature  of  any  of  the  states  can  revise  and 
correct  by  law,  a  decision  of  any  of  its  courts  of  justice,  although 
not  prohibited  by  the  constitution  of  the  state,  is  a  question  of 
very  great  importance,  and  not  necessary  now  to  be  determined; 
because  the  resolution  or  law  in  question  does  not  go  so  far.  .  ,  . 

All  the  restrictions  contained  in  the  Constitution  of  the  United 
States  on  the  power  of  the  state  legislatures,  were  provided  in 
favor  of  the  authority  of  the  federal  government.  The  prohibi- 
tion against  their  making  any  ex  post  facto  laws  was  introduced  for 
greater  caution,  and  very  probably  arose  from  the  knowledge,  that 
the  Parliament  of  Great  Britain  claimed  and  exercised  a  power  to 
pass  such  laws,  under  the  denomination  of  bills  of  attainder,  or 
bills  of  pains  and  penalties;  the  first  inflicting  capital,  and  the 
other  less  punishment.  These  acts  were  legislative  judgments; 
and  an  exercise  of  judicial  power.  Sometimes  they  respected  the 
crime,  by  declaring  acts  to  be  treason,  which  were  not  treason, 
when  committed;  ^  at  other  times,  they  violated  the  rules  of 
evidence  (to  supply  a  deficiency  of  legal  proof)  by  admitting  one 
witness,  when  the  existing  law  required  two ;  by  receiving  evidence 
without  oath;    or  the  oath  of  the  wife  against  the  husband;    or 

1  The  case  of  the  Earl  of  Strafford,  in  1641.  —  Rep. 


CALDER   V.    BULL.  427 

other  testimony,  which  the  courts  of  justice  would  not  admit;  ^ 
at  other  times  they  inflicted  punishments,  where  the  party  was  not, 
by  law,  liable  to  any  punishment;  ^  and  in  other  cases,  they  inflicted 
greater  punishment,  than  the  law  annexed  to  the  offense.^  The 
ground  for  the  exercise  of  such  legislative  power  was  this,  that  the 
safety  of  the  kingdom  depended  on  the  death,  or  other  punish- 
ment, of  the  offender:  as  if  traitors,  when  discovered,  could  be  so 
formidable,  or  the  government  so  insecure!  With  very  few 
exceptions,  the  advocates  of  such  laws  were  stimulated  by  ambi- 
tion, or  personal  resentment,  and  vindictive  malice.  To  prevent 
such,  and  simihar,  acts  of  violence  and  injustice,  I  believe,  the 
federal  and  state  legislatures  were  prohibited  from  passing  any 
bill  of  attainder;  or  any  ex  post  facto  law.  .  .  . 

It  may  be  remembered,  that  the  legislatures  of  several  of  the 
states,  to  wit,  Massachusetts,  Pennsylvania,  Delaware,  Maryland, 
and  North  and  South  Carolina,  are  expressly  prohibited,  by  their 
state  constitutions,  from  passing  any  ex  post  facto  law. 

I  shall  endeavor  to  show  what  law  is  to  be  considered  an  ex  post 
facto  law,  within  the  words  and  meaning  of  the  prohibition  in  the 
federal  Constitution.  The  prohibition,  "  that  no  state  shall  pass 
any  ex  post  facto  law,"  necessarily  requires  some  explanation;  for, 
naked  and  without  explanation,  it  is  unintelligible,  and  means 
nothing.  Literally,  it  is  only  that  a  law  shall  not  be  passed  con- 
cerning, and  after  the  fact,  or  thing  done,  or  action  committed. 
I  would  ask,  what  fact;  of  what  nature,  or  kind;  and  by  whom 
done  ?  That  Charles  1st,  king  of  England,  was  beheaded;  that 
Oliver  Cromwell  was  Protector  of  England;  that  Louis  16th  late 
King  of  France,  was  guillotined;  are  all  facts,  that  have  happened; 
but  it  would  be  nonsense  to  suppose,  that  the  states  were  prohibited 
from  making  any  law  after  either  of  these  events,  and  with  reference 
thereto.  The  prohibition,  in  the  letter,  is  not  to  pass  any  law  con- 
cerning, and  after  the  fact ;  but  the  plain  and  obvious  meaning  and 
intention  of  the  prohibition  is  this;  that  the  legislatures  of  the 
federal  states,  shall  not  pass  laws,  after  a  fact  done  by  a  subject,  or 
citizen,  which  shall  have  relation  to  such  fact,  and  shall  punish 
him  for  having  done  it.  The  prohibition  considered  in  this  hght,  is 
an  additional  bulwark  in  favor  of  the  personal  security  of  the  sub- 
ject, to  protect  his  person  from  punishment  by  legislative  act 

1  The  case  of  Sir  John  Fenwick,  in  1696.  —  Rep. 

2  The  banishment  of  Lord  Clarendon,  1669  (19  Ca.  2,  c.  10)  and  of  the 
Bishop  of  Atterburj',  in  1723  (9  Geo.  1,  c.  17).  —  Rep. 

»  The  Coventry  act,  in  1670  (22  &  23  Car.  2,  c.  1).  —  Rep. 


428  EX    POST    FACTO    LAW'S. 

having  a  retrospective  operation.  I  do  not  think  it  was  inserted 
to  secure  the  citizen  in  his  private  rights,  of  either  property,  or 
contracts.  The  prohibitions  not  to  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts,  and  not  to  pass  any  law 
impairing  the  obligation  of  contracts,  were  inserted  to  secure 
private  rights;  but  the  restriction  not  to  pass  any  ex  post  facto 
law  was  to  secure  the  person  of  the  subject  from  injury,  or  punish- 
ment, in  consequence  of  such  law.  If  the  prohibition  against  mak- 
ing ex  post  facto  laws  was  intended  to  secure  personal  rights  from 
being  affected,  or  injured,  by  such  laws,  and  the  prohibition  is 
sufficiently  extensive  for  that  object,  the  other  restraints,  I  have 
enumerated,  were  unnecessary,  and  therefore  improper;  for  both 
of  them  are  retrospective. 

I  wall  state  what  laws  I  consider  ex  post  facto  laws,  within  the 
words  and  the  intent  of  the  prohibition.  1st.  Every  law  that 
makes  an  action  done  before  the  passing  of  the  law,  and  which  was 
innocent  when  done,  criminal;  and  punishes  such  action.  2d. 
Every  law  that  aggravates  a  crime,  or  makes  it  greater  than  it  was 
when  committed.  3d.  Every  law  that  changes  the  punishment, 
and  inflicts  a  greater  punishment  than  the  law  annexed  to  the 
crime  when  committed.  4th.  Every  law  that  alters  the  legal 
rules  of  evidence,  and  receives  less,  or  different,  testimony,  than 
the  law  required  at  the  time  of  the  commission  of  the  offense,  in 
order  to  convict  the  offender.  All  these,  and  similar  laws,  are 
manifestly  unjust  and  oppressive.  In  my  opinion,  the  true  dis- 
tinction is  between  ex  post  facto  laws  and  retrospective  laws. 
Every  ex  post  facto  law  must  necessarily  be  retrospective;  but 
every  retrospective  law  is  not  an  ex  post  facto  law.  The  former, 
only,  are  prohibited.  Every  law  that  takes  away,  or  impairs, 
rights  vested,  agreeably  to  existing  laws,  is  retrospective,  and  is 
generally  unjust,  and  may  be  oppressive;  and  it  is  a  good  general 
rule  that  a  law  should  have  no  retrospect:  but  there  are  cases  in 
which  laws  may  justly,  and  for  the  benefit  of  the  community,  and 
also  of  individuals,  relate  to  a  time  antecedent  to  their  commence- 
ment; as  statutes  of  oblivion,  or  of  pardon.  They  are  certainly 
retrospective,  and  literally  both  concerning,  and  after,  the  facts 
committed.  But  I  do  not  consider  any  law  ex  post  facto,  within 
the  prohibition,  that  mollifies  the  rigor  of  the  criminal  law;  but 
only  those  that  create,  or  aggravate,  the  crime;  or  increase  the 
punishment,  or  change  the  rules  of  evidence,  for  the  purpose  of 
con\dction.  Every  law  that  is  to  have  an  operation  before  the 
making  thereof,  as  to  commence  at  an  antecedent  time;  or  to  save 


CALDER    V.    BULL.  429 

time  from  the  statute  of  limitations;  or  to  excuse  acts  which  were 
unlawful,  and  before  committed,  and  the  like;  is  retrospective. 
But  such  laws  may  be  proper  or  necessary,  as  the  case  may  be. 
There  is  a  great  and  apparent  difference  between  making  an  unlaw- 
ful act  la\^^ul;  and  the  making  an  innocent  action  criminal,  and 
punishing  it  as  a  crime.  The  expressions  "  ex  post  facto  laws,"  are 
technical,  they  had  been  in  use  long  before  the  Revolution,  and 
had  acquired  an  appropriate  meaning,  by  legislators,  lawyers,  and 
authors.  The  celebrated  and  judicious  Sir  William  Blackstone, 
in  his  commentaries,  considers  an  ex  post  facto  law  precisely  in  the 
same  light  I  have  done.  His  opinion  is  confirmed  by  his  successor, 
Mr.  Wooddeson;  and  by  the  author  of  the  Federalist,  whom  I 
esteem  superior  to  both,  for  his  extensive  and  accurate  knowledge 
of  the  true  principles  of  government. 

I  also  rely  greatly  on  the  definition,  or  explanation  of  ex  post  facto 
laws,  as  given  by  the  Conventions  of  Massachusetts,  Maryland,  and 
North  Carolina;  in  their  several  constitutions,  or  forms  of  govern- 
ment. 

In  the  declaration  of  rights,  by  the  Convention  of  Massachusetts, 
part  1st,  sec.  24,  "  Laws  made  to  punish  actions  done  before  the 
existence  of  such  laws,  and  which  have  not  been  declared  crimes  by 
preceding  laws,  are  unjust,  &c." 

In  the  declaration  of  rights,  by  the  Convention  of  Maryland, 
art.  loth,  "  Retrospective  laws  punishing  facts  committed  before 
the  existence  of  such  laws,  and  by  them  only  declared  criminal,  are 
oppressive,  &c." 

In  the  declaration  of  rights  by  the  Convention  of  North  Carolina, 
art.  24th,  I  find  the  same  definition,  precisely  in  the  same  words, 
as  in  the  Maryland  constitution. 

In  the  declaration  of  rights  by  the  Convention  of  Delaware, 
art.  nth,  the  same  definition  was  clearly  intended,  but  inaccu- 
rately expressed;  by  saying  "laws  punishing  offenses  (instead 
of  actions,  or  facts)  committed  before  the  existence  of  such  laws, 
are  oppressive,  &c." 

I  am  of  opinion,  that  the  fact,  contemplated  by  the  prohibition, 
and  not  to  be  affected  by  a  subsequent  law,  was  some  fact  to  be 
done  by  a  citizen,  or  subject.  ... 

In  the  present  case,  there  is  no  fact  done  by  Bull  and  wife 
plaintiffs  in  error,  that  is  in  any  manner  affected  by  the  law  or 
resolution  of  Connecticut:  It  does  not  concern,  or  relate  to,  any 
act  done  by  them.  The  decree  of  the  Court  of  Probate  of  Hartford 
(on  the  21st  March)  in  consequence  of  which  Calder  and  wife 


430  EX  POST  FACTO  LAWS. 

claim  a  right  to  the  property  in  question,  was  given  before  the  said 
law  or  resolution,  and  in  that  sense,  was  affected  and  set  aside  by  it; 
and  in  consequence  of  the  law  allowing  a  hearing  and  the  decision 
in  favor  of  the  will,  they  have  lost,  what  they  would  have  been 
entitled  to,  if  the  law  or  resolution,  and  the  decision  in  consequence 
thereof,  had  not  been  made.  The  decree  of  the  Court  of  Probate 
is  the  only  fact,  on  which  the  law  or  resolution  operates.  In  my 
judgment  the  case  of  the  plaintiffs  in  error,  is  not  within  the  letter 
of  the  prohil)ition;  and,  for  the  reasons  assigned,  I  am  clearly  of 
opinion,  that  it  is  not  within  the  intention  of  the  prohibition;  and 
if  within  the  intention,  but  out  of  the  letter,  I  should  not,  therefore, 
consider  myself  justified  to  continue  it  within  the  prohibition,  and 
therefore  that  the  whole  w'as  void. 

It  was  argued  by  the  counsel  for  the  plaintiffs  in  error,  that 
the  Legislature  of  Connecticut  had  no  constitutional  power 
to  make  the  resolution  (or  law)  in  question,  granting  a  new  hear- 
ing, &c. 

Without  giving  an  opinion,  at  this  time,  whether  this  court  has 
jurisdiction  to  decide  that  any  law  made  by  Congress,  contrary  to 
the  Constitution  of  the  United  States,  is  void;  I  am  fully  satisfied 
that  this  court  has  no  jurisdiction  to  determine  that  any  law  of  any 
state  legislature,  contrary  to  the  constitution  of  such  state,  is  void. 
Further,  if  this  court  had  such  jurisdiction,  yet  it  does  not  appear  to 
me,  that  the  resolution  (or  law)  in  question,  is  contrary  to  the 
charter  of  Connecticut,  or  its  constitution,  which  is  said  by  counsel 
to  be  composed  of  its  charter,  acts  of  assembly,  and  usages,  and 
customs.  .  .  . 

I  believe  that  but  one  instance  can  be  found  in  which  a  British 
judge  called  a  statute,  that  affected  contracts  made  before  the 
statute,  an  ex  post  facto  law;  but  the  judges  of  Great  Britain  always 
considered  penal  statutes,  that  created  crimes,  or  increased  the 
punishment  of  them,  as  ex  post  facto  laws. 

If  the  term  ex  post  facto  law  is  to  be  construed  to  include  and 
to  prohibit  the  enacting  any  law  after  a  fact,  it  will  greatly  restrict 
the  power  of  the  federal  and  state  legislatures;  and  the  conse- 
quences of  such  a  construction  may  not  be  foreseen. 

If  the  prohibition  to  make  no  ex  post  facto  law  extends  to  all  laws 
made  after  the  fact,  the  two  prohibitions,  not  to  make  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts;  and  not  to 
pass  any  law  impairing  the  obhgation  or  contracts,  were  improper 
and  unnecessary. 


CALDER   V.    BULL. 


431 


It  was  further  urged,  that  if  the  provision  does  not  extend  to 
prohibit  the  making  any  law  after  a  fact,  then  all  choses  in  action; 
all  lands  by  devise;  all  personal  property  by  bequest,  or  distribu- 
tion; by  elegit;  by  execution;  by  judgments,  particularly  on 
torts;  will  be  unprotected  from  the  legislative  power  of  the  states; 
rights  vested  may  be  divested  at  the  wall  and  pleasure  of  the  state 
legislatures;  and,  therefore,  that  the  true  construction  and  mean- 
ing of  the  prohibition  is,  that  the  states  pass  no  law  to  deprive  a 
citizen  of  any  right  vested  in  him  by  existing  laws. 

It  is  not  to  be  presumed  that  the  federal  or  state  legislatures 
\v\\\  pass  laws  to  deprive  citizens  of  rights  vested  in  them  by  existing 
laws;  unless  for  the  benefit  of  the  whole  community;  and  on 
making  full  satisfaction.  The  restraint  against  making  any  ex  post 
facto  laws  was  not  considered,  by  the  framers  of  the  Constitution,  as 
extending  to  prohibit  the  depriving  a  citizen  even  of  a  vested  right 
to  property;  or  the  provision,  "  that  private  property  should  not 
be  taken  for  public  use,  \\'ithout  just  compensation,"  was  unneces- 
sary. ... 

I  am  of  opinion  that  the  decree  of  the  Supreme  Court  of  Errors 

of  Connecticut  be  affirmed,  with  costs. 

Paterson,  J.  The  constitution  of  Connecticut  is  made  up  of 
usages,  and  it  appears  that  its  legislature  have,  from  the  beginning, 
exercised  the  power  of  granting  new  trials.  .  .  .  We  may,  m  the 
present  instance,  consider  the  Legislature  ...  as  havmg  acted  m 
their  customary  judicial  capacity.  ...  But  as  this  view  .  .  . 
militates  against  the  plaintiffs  in  error,  their  counsel  has  contended 
for  a  reversal  of  the  judgment  on  the  ground  that  the  awardmg  of  a 
new  trial  was  the  effect  of  a  legislative  act,  and  that  it  is  uncon- 
stitutional, because  an  ex  post  facto  law.  ...  The  words  ex  post 
facto,  when  applied  to  a  law,  have  a  technical  meamng,  and,  in 
legal  phraseolog>%  refer  to  crimes,  pains,  and  penalties.  .  .  . 

I  had  an  ardent  desire  to  have  extended  the  provision  in  the 
Constitution  to  retrospective  laws  in  general.  There  is  neither 
policy  nor  safety  in  such  laws;  and,  therefore,  I  have  always  had  a 
strong  aversion  against  them.  It  may,  in  general,  be  truly 
observed  of  retrospective  laws  of  every  description,  that  they 
neither  accord  with  sound  legislation,  nor  the  fundamental  prin- 
ciples of  the  social  compact.  But  on  full  consideration,  I  am  con- 
vinced, that  ex  post  facto  laws  must  be  limited  in  the  manner 
already  expressed;  they  must  be  taken  in  their  techmcal,  which 
is  also  their  common  and  general,  acceptation,  and  are  not  to  be 
understood  in  their  Uteral  sense. 


432  EX    POST    FACTO    LAWS. 

Iredell,  J.  .  .  . 

It  has  been  the  policy  of  all  the  American  states,  which  have, 
individually,  framed  their  state  constitutions  since  the  revolution, 
and  of  the  people  of  the  United  States,  when  they  framed  the 
federal  Constitution,  to  define  with  precision  the  objects  of  the 
legislative  power,  and  to  restrain  its  exercise  ^\^thin  marked  and 
settled  boundaries.  If  any  act  of  Congress,  or  of  the  legislature  of  a 
state,  violates  those  constitutional  provisions,  it  is  unquestionably 
void;  though,  I  achnit,  that  as  the  authority  to  declare  it  void  is  of 
a  delicate  and  awful  nature,  the  court  will  never  resort  to  that 
authority,  but  in  a  clear  and  urgent  case.  If,  on  the  other  hand, 
the  legislature  of  the  Union,  or  the  legislature  of  any  member  of 
the  Union,  shall  pass  a  law,  within  the  general  scope  of  their 
constitutional  power,  the  court  cannot  pronounce  it  to  be  void, 
merely  because  it  is,  in  their  judgment,  contrary  to  the  principles 
of  natural  justice.  The  ideas  of  natural  justice  are  regulated  by 
no  fixed  standard:  the  ablest  and  the  purest  men  have  differed 
upon  the  subject;  and  all  that  the  court  could  properly  say,  in 
such  an  event,  would  be,  that  the  legislature  (possessed  of  an  equal 
right  of  opinion)  had  passed  an  act  which,  in  the  opinion  of  the 
judges,  was  inconsistent  with  the  abstract  principles  of  natural 
justice.  There  are  then  but  two  lights,  in  which  the  subject  can  be 
viewed:  1st.  If  the  legislature  pursue  the  authority  delegated  to 
them,  their  acts  are  vahd.  2d.  If  they  transgress  the  boundaries 
of  that  authority,  their  acts  are  invalid.  In  the  former  case,  they 
exercise  the  discretion  vested  in  them  by  the  people,  to  whom  alone 
they  are  responsible  for  the  faithful  discharge  of  their  trust:  but 
in  the  latter  case,  they  violate  a  fundamental  law,  which  must  be 
our  guide,  whenever  we  are  called  upon  as  judges  to  determine  the 
vahdity  of  a  legislative  act.  .  .  . 

The  act  or  resolution  of  the  Legislature  of  Connecticut  cannot  be 
regarded  as  an  ex  post  facto  law;  for  the  true  construction  of  the 
prohibition  extends  to  criminal,  not  to  civil,  cases.  .  .  . 
■  In  the  present  instance  the  objection  does  not  arise:  Because, 
1st,  if  the  act  of  the  Legislature  of  Connecticut  was  a  judicial  act, 
it  is  not  within  the  words  of  the  Constitution;  and  2d  even  if  it 
was  a  legislative  act,  it  is  not  within  the  meaning  of  the  prohibition. 
CusHiNG,  J.  The  case  appears  to  me  to  be  clear  of  all  difficulty, 
taken  either  way.  If  the  act  is  a  judicial  act,  it  is  not  touched  by 
the  federal  Constitution:  and  if  it  is  a  legislative  act,  it  is  main- 
tained and  justified  by  the  ancient  and  uniform  practice  of  the 
State  of  Connecticut.  Judgment  affirmed. 


Ex  parte  garland.  433 

Ex  parte  GARLAND. 

Supreme  Court  of  the  United  States.     1867. 

[4  Wallace,  333.]  i 

Garland  petitioned  the  Supreme  Court  of  the  United  States  to 
be  permitted  to  continue  to  practise  as  an  attorney  and  counsellor 
of  that  court  without  taking  the  oath  required  by  the  act  of  Con- 
gress of  January  24,  1865  (13  U.  S.  Stat,  at  Large,  424).  At 
December  Term,  1860,  when  he  was  originally  admitted  to  the  bar 
of  the  court,  the  rule  was  as  follows:  "  It  shall  be  requisite  to  the 
admission  of  attorneys  and  counsellors  to  practise  in  this  court, 
that  they  shall  have  been  such  for  three  years  past  in  the  Supreme 
Courts  of  the  states  to  which  they  respectively  belong,  and  that 
their  private  and  professional  character  shall  appear  to  be  fair. 
Thej^  shall  respectively  take  the  follou-ing  oath  or  affirmation,  viz. : 
'  I,  A.  B.,  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I 
vn\\  demean  myself  as  an  attorney  and  counsellor  of  this  court, 
uprightly,  and  according  to  law,  and  that  I  will  support  the  Con- 
stitution of  the  United  States.'  "  In  March,  1865,  the  rule  was 
changed  by  adding  a  requirement  of  an  oath  in  conformity  wnth  the 
act  of  1865,  which  act  provided  that  no  person  should  be  admitted 
to  the  bar  of  that  court,  or  should  be  allowed  to  appear  and  be 
heard  therein  by  virtue  of  previous  admission,  unless  he  should 
take  oath  as  follows:  "  that  I  have  never  voluntarily  borne  arms 
against  the  United  States  since  I  have  been  a  citizen  thereof; 
that  I  have  voluntarily  given  no  aid,  countenance,  counsel,  or 
encouragement  to  persons  engaged  in  armed  ho.stility  thereto; 
that  I  have  neither  sought  nor  accepted,  nor  attempted  to  exercise 
the  functions  of  any  office  whatever,  under  any  authority  or  pre- 
tended authority  in  hostihty  to  the  United  States;  that  I  have 
not  yielded  a  voluntary  support  to  any  pretended  government, 
authority,  power,  or  constitution  'within  the  United  States,  hostile 
or  inimical  thereto.  And  .  .  .  that,  to  the  best  of  my  knowledge 
and  ability,  I  will  support  and  defend  the  Constitution  of  the 
United  States  against  all  enemies,  foreign  and  domestic."  The 
petitioner  had  represented  Arkansas  in  the  House  of  Representa- 
tives of  the  Confederate  States  and  in  the  Senate;  but  in  July, 
1865,  he  had  received  and  accepted  from  the  President  of  the 
United  States  "  full  pardon  and  amnesty  for  all  offenses  .  .  . 
arising  from  participation,  direct  or  imphed,  in  the  said  RebeUion." 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


434  EX    POST    FACTO    LAWS. 

Reverdy  Johnson,  M.  H.  Carpenter,  and  R.  H.  Marr,  for  peti- 
tioner, who  filed  a  brief  pro  se;  and  Speed  and  Stanbery,  contra, 
for  the  United  States. 

Field,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

He  rests  his  application  principally  upon  two  grounds : 

1st.  That  the  act  of  January  24th,  1865,  so  far  as  it  affects  his 
status  in  the  court,  is  unconstitutional  and  void;  and, 

2d.  That,  if  the  act  be  constitutional,  he  is  released  from  com- 
pliance "wdth  its  provisions  by  the  pardon  of  the  President.  .  .  . 

The  statute  is  directed  against  parties  who  have  offended  in  any 
of  the  particulars  embraced  by  these  clauses.  And  its  object  is  to 
exclude  them  from  the  profession  of  the  law,  or  at  least  from  its 
practice  in  the  courts  of  the  United  States.  As  the  oath  pre- 
scribed cannot  be  taken  by  these  parties,  the  act,  as  against  them, 
operates  as  a  legislative  decree  of  perpetual  exclusion.  And 
exclusion  from  any  of  the  professions  or  any  of  the  ordinary  avoca- 
tions of  life  for  past  conduct  can  be  regarded  in  no  other  light  than 
as  punishment  for  such  conduct.  The  exaction  of  the  oath  is  the 
mode  provided  for  ascertaining  the  parties  upon  whom  the  act  is 
intended  to  operate,  and  instead  of  lessening,  increases  its  objec- 
tionable character.  All  enactments  of  this  kind  partake  of  the 
nature  of  bills  of  pains  and  penalties,  and  are  subject  to  the  con- 
stitutional inhibition  against  the  passage  of  bills  of  attainder,  under 
which  general  designation  they  are  included. 

In  the  exclusion  which  the  statute  adjudges  it  imposes  a  punish- 
ment for  some  of  the  acts  specified  which  were  not  punishable  at 
the  time  they  were  committed;  and  for  other  of  the  acts  it  adds  a 
new  punishment  to  that  before  prescribed,  and  it  is  thus  brought 
within  the  further  inhibition  of  the  Constitution  against  the 
passage  oi  Sin  ex  post  facto  law.  .  .  . 

The  profession  of  an  attorney  and  counsellor  is  not  like  an 
office  created  by  an  act  of  Congress,  which  depends  for  its  con- 
tinuance, its  powers,  and  its  emoluments  upon  the  will  of  its 
creator,  and  the  possession  of  which  may  be  burdened  with  any 
conditions  not  prohibited  by  the  Constitution.  Attorneys  and 
counsellors  are  not  officers  of  the  United  States;  they  are  not 
elected  or  appointed  in  the  manner  prescribed  by  the  Constitution 
for  the  election  and  appointment  of  such  officers.  They  are  officers 
of  the  court,  admitted  as  such  by  its  order,  upon  evidence  of  their 
possessing  sufficient  legal  learning  and  fair  private  character. 
It  has  been  the  general  practice  in  this  country  to  obtain  this 
evidence  by  an  examination  of  the  parties.     In  this  court  the  fact 


Ex  parte  garland.  435 

of  the  admission  of  such  officers  in  the  highest  court  of  the  states  to 
which  they  respectively  belong,  for  three  years  preceding  their 
apphcation,  is  regarded  as  sufficient  evidence  of  the  possession  of 
the  requisite  legal  learning,  and  the  statement  of  counsel  moving 
their  admission  sufficient  evidence  that  their  private  and  profes- 
sional character  is  fair.  The  order  of  admission  is  the  judgment 
of  the  court  that  the  parties  possess  the  requisite  qualifications  as 
attorneys  and  counsellors,  and  are  entitled  to  appear  as  such  and 
conduct  causes  therein.  From  its  entry  the  parties  become 
officers  of  the  court,  and  are  responsible  to  it  for  professional  mis- 
conduct. They  hold  their  office  during  good  behavior,  and  can 
only  be  deprived  of  it  for  misconduct  ascertained  and  declared  by 
the  judgment  of  the  court  after  opportunity  to  be  heard  has  been 
afforded.  Ex  parte  Heyfron,  7  Howard,  Mississippi,  127;  Fletcher 
V.  Daingerfield,  20  California,  430.  Their  admission  or  their 
exclusion  is  not  the  exercise  of  a  mere  ministerial  power.  It  is  the 
exercise  of  judicial  power.  .  .  . 

The  attorney  and  counsellor  being,  by  the  solemn  judicial  act 
of  the  court,  clothed  with  his  office,  does  not  hold  it  as  a  matter  of 
grace  and  favor.  The  right  which  it  confers  upon  him  to  appear 
for  suitors,  and  to  argue  causes,  is  something  more  than  a  mere 
indulgence,  revocable  at  the  pleasure  of  the  court,  or  at  the  com- 
mand of  the  legislature.  It  is  a  right  of  which  he  can  only  be 
deprived  by  the  judgment  of  the  court,  for  moral  or  professional 

delinquency. 

The  legislature  may  undoubtedly  prescribe  qualifications  for  the 
office,  to  which  he  must  conform,  as  it  may,  where  it  has  exclusive 
jurisdiction,  prescribe  quaUfications  for  the  pursuit  of  any  of  the 
ordinary  avocations  of  life.  The  question,  in  this  case,  is  not  as 
to  the  power  of  Congress  to  prescribe  qualifications,  but  whether 
that  power  has  been  exercised  as  a  means  for  the  infliction  of  pun- 
ishment, against  the  prohibition  of  the  Constitution.  That  this 
result  cannot  be  effected  indirectly  by  a  state  under  the  form  of 
creating  qualifications  we  have  held  in  the  ease  of  Cummings  v.  The 
State  of  Missouri,  and  the  reasoning  by  which  that  conclusion  was 
reached  apphes  equally  to  similar  action  on  the  part  of  Congress. 

This  view  is  strengthened  by  a  consideration  of  the  effect  of  the 
pardon  produced  by  the  petitioner,  and  the  nature  of  the  pardoning 
power  of  the  President. 

The  Constitution  provides  that  the  President  "  shall  have  power 
to  grant  reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment."     Art.  II.,  sect.  2.  .  .  . 


436  EX   POST    FACTO    LAWS. 

Such  being  the  case,  the  inquiry  arises  as  to  the  effect  and  opera- 
tion of  a  pardon,  and  on  this  point  all  the  authorities  concur.  A 
pardon  reaches  both  the  punishment  prescribed  for  the  offense  and 
the  guilt  of  the  offender;  and  when  the  pardon  is  full,  it  releases  the 
punishment  and  blots  out  of  existence  the  guilt,  so  that  in  the  eye 
of  the  law  the  offender  is  as  innocent  as  if  he  had  never  committed 
the  offense.  If  granted  before  conviction,  it  prevents  any  of  the 
penalties  and  disabiUties  consequent  upon  conviction  from  attach- 
ing; if  granted  after  conviction,  it  removes  the  penalties  and  dis- 
abilities, and  restores  him  to  all  his  civil  rights;  it  makes  him,  as  it 
were,  a  new  man,  and  gives  him  a  new  credit  and  capacity. 

There  is  only  this  limitation  to  its  operation :  it  does  not  restore 
offices  forfeited,  or  property  or  interests  vested  in  others  in  conse- 
quence of  the  conviction  and  judgment.  4  Blackstone's  Com- 
mentaries, 402;  6  Bacon's  Abridgment,  tit.  Pardon;  Hawkins, 
book  2,  c.  37,  §§  34  and  54. 

The  pardon  produced  by  the  petitioner  is  a  full  pardon  "  for  all 
offenses  by  him  committed,  arising  from  participation,  direct  or 
imphed,  in  the  Rebellion,"  and  is  subject  to  certain  conditions 
which  have  been  comphed  with.  The  effect  of  this  pardon  is  to 
relieve  the  petitioner  from  all  penalties  and  disabilities  attached 
to  the  offense  of  treason,  committed  by  his  participation  in  the 
Rebellion.  So  far  as  that  offense  is  concerned,  he  is  thus  placed 
beyond  the  reach  of  punishment  of  any  kind.  But  to  exclude  him, 
by  reason  of  that  offense,  from  continuing  in  the  enjoyment  of  a 
previously  acquired  right,  is  to  enforce  a  punishment  for  that  of- 
fense notwithstanding  the  pardon.  If  such  exclusion  can  be 
effected  by  the  exaction  of  an  expurgatory  oath  covering  the 
offense,  the  pardon  may  be  avoided,  and  that  accomplished 
indirectly  which  cannot  be  reached  by  direct  legislation.  It  is  not 
within  the  constitutional  power  of  Congress  thus  to  inflict  punish- 
ment beyond  the  reach  of  executive  clemency.  From  the  petitioner, 
therefore,  the  oath  required  by  the  act  of  January  24th,  1865, 
could  not  be  exacted,  even  if  that  act  were  not  subject  to  any  other 
objection  than  the  one  thus  stated. 

It  follows,  from  the  views  expressed,  that  the  prayer  of  the 
petitioner  must  be  granted.  ...      .  And  it  is  as  ordered.^ 

Miller,  J.,  on  behalf  of  himself  and  Chase,  C.  J.,  and  Swayne 
and  Davis,  JJ.,    ...  dissenting.  .  .  . 

1  See  Cummings  v.  Missouri,  4  Wall.  277  (1867) ;  and  Pierce  v.  Carskadon, 
16  Wall.  234  (1873).  — Fb, 


GUT    V.    THE    STATE.  437 

GUT  V.   THE  STATE. 
Supreme  Court  of  the  United  States.     1870. 

[9  Wallace,  35.] 

Error  to  the  Supreme  Court  of  Minnesota.  The  case  was  thus  : 
A  statute  of  Minnesota,  in  force  in  1866,  required  that  criminal 
causes  should  be  tried  in  the  county  where  the  offenses  were  com- 
mitted. The  offense  charged  against  the  defendant  was  committed 
in  December  of  that  year,  in  the  county  of  Brown,  in  that  state. 
At  that  time  four  other  counties,  which  were  unorganized,  were 
attached  to  Bro\\Ti  County  for  judicial  purposes.  On  the  9th  of 
March,  1867,  a  statute  was  passed  by  the  legislature  of  the  state 
authorizing  the  judge  of  the  District  Court,  in  cases  where  one  or 
more  counties  were  attached  to  another  county  for  judicial  pur- 
poses, to  order,  whenever  he  should  consider  it  to  be  in  furtherance 
of  justice,  or  for  the  public  convenience,  that  the  place  of  hokhng 
the  court  should  be  changed  from  the  county  then  designated  by 
law  to  one  of  the  other  counties  thus  attached. 

Under  this  act  the  judge  of  the  district  embracing  Brown  County 
ordered  that  the  place  of  holding  the  court  should  be  changed  from 
that  county  to  the  county  of  Redwood,  within  the  same  district, 
and  the  change  was  accordingly  made.  The  court  subsequently 
held  its  sessions  in  Redwood  County,  where  the  defendant,  in 
September,  1867,  was  indicted  for  murder  in  the  first  degree.  The 
plea  of  not  guilty  having  been  interposed  the  case  was  transferred, 
on  his  motion,  to  Nicollet  County,  in  an  adjoining  cUstrict,  where  he 
was  tried,  convicted,  and  sentenced.  On  appeal  to  the  Supreme 
Court  of  the  state  the  judgment  was  affirmed,  and  the  case  was 
now  brought  to  this  court  under  the  2oth  section  of  the  Judiciary 
Act. 

E.  M.  Wilson,  for  plaintiff  in  error,  contended  .  .  .  that  the 
act  .  .  .  under  which  the  court  was  held  in  Redwood  County,  and 
the  grand  jury  were  summoned,  was  unconstitutional  so  far  as  it 
authorized  an  indictment  or  trial  there  of  an  offense  previously 
committed  in  Brown  County;  that  it  was  in  effect  an  ex  post  facto 
law,  and,  therefore,  within  the  inhibition  of  the  federal  Con- 
stitution. 

F.  R.  E.  Cornell,  Attorney-General  of  IVIinnesota,  contra. 
Field,  J.,  after  stating  the  case,  deUvered  the  opinion  of  the 

court,  as  follows: 


438  EX  POST  FACTO  LAWS. 

The  objection  to  the  act  of  Minnesota,  if  there  be  any,  does  not 
rest  on  the  ground  that  it  is  an  ex  post  facto  law,  and,  therefore, 
within  the  inhibition  of  the  federal  Constitution.  It  must  rest, 
if  it  has  any  force,  upon  that  provision  of  the  state  constitution 
which  declares  that,  "  in  all  criminal  prosecutions,  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an  impartial" 
jury  of  the  county  or  district  wherein  the  crime  shall  have  been 
committed,  which  county  or  district  shall  have  been  previously 
ascertained  by  law."  But  the  Supreme  Court  of  the  state  hais 
held  that  the  act  in  question  is  not  in  conflict  with  this  provision; 
that  the  act  does  not  change  the  district,  but  merely  the  place  of 
trial  in  the  district,  which  is  not  forbidden.  And  it  appears  that 
jurors  for  the  trial  of  criminal  offenses  committed  in  one  of  the 
counties  of  the  several  attached  together  for  judicial  purposes,  are 
chosen  from  all  the  counties;  and  that  this  was  the  law  before,  as 
it  has  been  since  the  passage  of  the  act  which  is  the  subject  of 
complaint.  Therefore  the  defendant,  had  he  not  secured,  by  his 
own  motion,  a  change  of  venue,  would  have  had  a  jury  of  the  dis- 
trict in  which  the  crime  was  committed,  and  which  district  was 
previously  ascertained  by  law. 

The  ruling  of  the  state  court  is  conclusive  upon  this  court,  upon 
the  point  that  the  law  in  question  does  not  violate  the  constitu- 
tional provision  cited.  Randall  v.  Brigham,  7  Wallace,  541; 
Provident  Institution  v.  Massachusetts,  6  id.  630. 

Undoubtedly  the  provision  securing  to  the  accused  a  public 
trial  within  the  county  or  district  in  which  the  offense  is  committed 
is  of  the  highest  importance.  It  prevents  the  possibility  of  sending 
him  for  trial  to  a  remote  district,  at  a  distance  from  friends,  among 
strangers,  and  perhaps  parties  animated  by  prejudices  of  a  personal 
or  partisan  character;  but  its  enforcement  in  cases  arising  under 
state  laws  is  not  a  matter  within  the  jurisdiction  of  the  federal 
courts. 

A  law  changing  the  place  of  trial  from  one  county  to  another 
county  in  the  same  district,  or  even  to  a  different  district  from  that 
in  which  the  offense  was  committed,  or  the  indictment  found,  is 
not  an  ex  post  facto  law,  though  passed  subsequent  to  the  commis- 
sion of  the  offense  or  the  finding  of  the  indictment.  An  ex  post 
facto  law  does  not  involve,  in  any  of  its  definitions,  a  change  of  the 
place  of  trial  of  an  alleged  offense  after  its  commission.  It  is 
defined  by  Chief  Justice  Marshall,  in  Fletcher  v.  Peck,  6  Cranch, 
138,  to  be  a  law,  "  which  renders  an  act  punishable  in  a  manner  in 
which  it  was  not  punishable  when  it  was  committed; "  and  in  Cum- 


KRING   V.    MISSOURI.  439 

mings  V.  Missouri,  4  Wallace,  326,  with  somewhat  greater  fulness, 
as  a  law  ''  which  imposes  a  punishment  for  an  act  which  was  not 
punishable  at  the  time  it  was  committed;  or  imposes  additional 
punislmient  to  that  then  prescribed;  or  changes  the  rules  of 
e\4dence,  by  which  less  or  different  testunony  is  suflacient  to 
com-ict  than  was  then  required." 

The  act  of  Minnesota  under  consideration  has  no  feature  which 
brings  it  within  either  of  these  definitions. 

Judgment  affirmed} 


KRING  V.  MISSOURI. 
Supreme  Court  of  the  United  States.     1883. 

[107  United  States,  221.]  = 

Error  to  the  Supreme  Court  of  Missouri. 

Kring  was  indicted  in  the  Criminal  Court  of  St.  Louis  for  murder 
in  the  first  degree,  charged  to  have  been  committed  January  4, 
1875,  and  pleaded  not  guilty.     He  had  four  trials.     At  the  third 
trial  he  was  permitted  to  \\'ithdraw  his  plea  of  not  guilty  and  to 
plead  guilty  to  murder  in  the  second  degree,  and  was  thereupon 
sentenced  to  the  penitentiary  for  twenty-five  years.     He  took  an 
appeal  on  the  ground  that  the  understanding  with  the  prosecuting 
attorney  had  been  for  a  sentence  not  exceeding  ten  years.      The 
Supreme  Court  of  Missouri  reversed  the  judgment,  and  remanded 
the  case  for  further  proceedings.      On  the  fourth  trial  Kring 
refused  to  \\dthdraw  his  plea  of  guilty  of  murder  in  the  second 
degree,  and  refused  to  renew  his  plea  of  not  guilty;  but  the  court, 
against  his  remonstrance,  set  aside  his  plea  of  guilty  of  murder  in 
the  second  degree  and  directed  a  general  plea  of  not  guilty.     The 
result  was  conviction  of  murder  in  the  first  degree,  with  sentence 
of  hanging;  and  this  judgment  was  affirmed  by  the  Supreme  Court 
of  Missouri  (74  Mo.  612),  whereupon  this  writ  of  error  was  taken, 
upon  the  ground  that  by  the  law  of  Missouri,  as  established  by  deci- 
sion, when  the  crime  was  committed  conviction  and  sentence  under 
the  plea  of  guilty  of  murder  in  the  second  degree  were  an  acquittal 

1  Ace:  Cook  V.  United  States,  138  U.  S.  157  (1891).  —  Ed. 

2  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


440  EX  POST  FACTO  LAWS. 

of  the  charge  of  murder  in  the  first  degree,  and  that  the  a])rogation 
of  this  rule  by  sect.  23,  art.  2  of  the  constitution  of  Missouri,  which 
took  effect  November  30,  1875,  was  an  ex  post  facto  law  within  the 
meaning  of  the  Constitution  of  the  United  States. 

Jefferson  Chandler  and  L.  D.  Seward,  for  plaintiff  in  error;  and 
S.  F.  Phillips,  contra. 

Miller,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

It  is  to  be  observed  that  the  force  of  the  argument  for  acquittal 
does  not  stand  upon  defendant's  plea,  nor  upon  its  acceptance  by 
the  state's  attorney,  nor  the  consent  of  the  court;  but  it  stands 
upon  the  judgment  and  sentence  of  the  court  by  which  he  is  con- 
victed of  murder  in  the  second  degree,  and  sentence  pronounced 
according  to  the  law  of  tiiat  guilt,  which  was  by  operation  of  the 
same  law  an  acquittal  of  the  other  and  higher  crime  of  murder 
charged  in  the  same  indictment.  .  .  . 

There  is  no  question  of  the  right  of  the  State  of  Missouri,  either 
by  her  fundamental  law  or  by  an  ordinary  act  of  legislation,  to 
abolish  this  rule,  and  that  it  is  a  valid  law  as  to  all  offenses  com- 
mitted after  its  enactment.  The  question  here  is,  Does  it  deprive 
the  defendant  of  any  right  of  defense  which  the  law  gave  him  when 
the  act  was  committed  so  that  as  to  that  offense  it  is  ex  post  facto  ? 

This  term  necessarily  implies  a  fact  or  act  done,  after  which 
the  law  in  question  is  passed.  Whether  it  is  ex  post  facto  or  not 
relates,  in  criminal  cases,  to  which  alone  the  phrase  applies,  to  the 
time  at  which  the  offense  charged  was  committed.  If  the  law 
complained  of  was  passed  before  the  commission  of  the  act  with 
which  the  prisoner  is  charged,  it  cannot,  as  to  that  offense,  be  an 
ex  post  facto  law.  If  passed  after  the  commission  of  the  offense, 
it  is  as  to  that  ex  post  facto,  though  whether  of  the  class  forbidden 
by  the  Constitution  may  depend  on  other  matters.  But  so  far  as 
this  depends  on  the  time  of  its  enactment,  it  has  reference  solely 
to  the  date  at  which  the  offense  was  committed  to  which  the  new 
law  is  sought  to  be  applied.  No  other  time  or  transaction  but  this 
has  been  in  any  adjudged  case  held  to  govern  its  ex  post  facto 
character. 

In  the  case  before  us  an  argument  is  made  founded  on  a  change 
in  this  rule.  It  is  said  the  new  law  in  Missouri  is  not  ex  post  facto, 
because  it  was  in  force  when  the  plea  and  judgment  were  entered 
of  guilty  of  murder  in  the  second  degree;  thus  making  its  character 
as  an  ex  post  facto  law  to  depend,  not  upon  the  date  of  its  passage 
as  regards  the  commission  of  the  offense,  but  as  regards  the  time 
of  pleading  guilty.     That,  as  the  new  law  was  in  force  when  the 


KRING  V.   MISSOURI.  •   441 

conviction  on  that  plea  was  had,  its  effect  as  to  future  trials  in  that 
case  must  be  governed  by  that  law.  But  this  is  begging  the  whole 
question;  for  if  it  was  as  to  the  offense  charged  an  ex  post  facto  law, 
within  the  true  meaning  of  that  phrase,  it  was  not  in  force  and  could 
not  be  apphed  to  the  case,  and  the  effect  of  that  plea  and  conviction 
must  be  decided  as  though  no  such  change  in  the  law  had  been 
made. 

Such,  however,  is  not  the  ground  on  which  the  Supreme  Court 
and  the  Court  of  Appeals  placed  their  judgment. 

"  There  is  nothing,"  say  the}^,  "  in  this;  the  change  is  a  change 
not  in  crimes,  but  in  criminal  procedure,  and  such  changes  are  not 
ex  post  facto."  .  .  . 

In  the  case  before  us  the  constitution  of  Missouri  so  changes 
the  rule  of  evidence,  that  what  was  conclusive  evidence  of  inno- 
cence of  the  higher  grade  of  murder  when  the  crime  was  committed, 
namely,  a  judicial  conviction  for  a  lower  grade  of  homicide,  is  not 
received  as  evidence  at  all,  or,  if  received,  is  given  no  weight  in 
behalf  of  the  offender.  It  also  changes  the  punishment,  for, 
whereas  the  law  as  it  stood  when  the  homicide  was  committed  was 
that,  when  convicted  of  murder  in  the  second  degree,  he  could  never 
be  tried  or  punished  by  death  for  murder  in  the  first  degree,  the 
new  law  enacts  that  he  may  be  so  punished,  notwithstanding  the 
former  conviction.  .  .  . 

Can  any  substantial  right  which  the  law  gave  the  defendant  at 
the  time  to  which  his  guilt  relates  be  taken  away  from  him  by 
ex  post  facto  legislation,  because,  in  the  use  of  a  modern  phrase,  it  is 
called  a  law  of  procedure  ?     We  think  it  cannot. 

Some  hght  may  be  thro\NTi  upon  this  branch  of  the  argument 
by  a  recurrence  to  a  few  of  the  numerous  decisions  of  the  highest 
court  construing  the  associated  phrase  in  the  same  sentence  of  the 
Constitution  which  forbids  the  states  to  pass  any  law  impairing 
the  obhgation  of  contracts.  It  has  been  held  that  this  prohibition 
also  relates  exclusively  to  laws  passed  after  the  contract  is  made, 
and  its  force  has  been  often  sought  to  be  evaded  by  the  argument 
that  laws  are  not  forbidden  which  affect  only  the  remedy,  if  they 
do  not  change  the  nature  of  the  contract,  or  act  directly  upon  it. 

The  analogy  between  this  argument  and  the  one  concerning  laws 
of  procedure  in  relation  to  the  contiguous  words  of  the  Constitu- 
tion is  obvious.  But  while  it  has  been  held  that  a  change  of 
remedy  made  after  the  contract  may  be  yalid,  it  is  only  so  when 
there  is  substituted  an  adequate  and  sufficient  remedy  by  which 
the  contract  may  be  enforced,  or  where  such  remedy  existed  and 


442    •  EX    POST    FACTO    LAWS. 

remained  unaffected  by  the  new  law.  Tennessee  v.  Sneed,  96  U.  S. 
69.  .  .  . 

Why  is  not  the  right  to  Hfe  and  hberty  as  sacred  as  the  right 
growing  out  of  a  contract  ?  Why  should  not  the  contiguous  and 
associated  words  in  the  Constitution,  relating  to  retroactive  laws, 
on  these  two  subjects,  be  governed  by  the  same  rule  of  construe- 
tion  ?  And  why  should  a  law,  equally  injurious  to  the  rights  of  the 
party  concerned,  be  under  the  same  circumstances  void  in  one  case 
and  not  in  the  other  ? 

But  it  is  said  that  at  the  time  the  prisoner  pleaded  guilty  of 
murder  in  the  second  degree,  and  at  the  time  he  procured  the 
reversal  of  the  judgment  of  the  criminal  court  on  that  plea,  the  new 
constitution  was  in  force,  and  he  was  bound  to  know  the  effect  of 
the  change  in  the  law  on  his  case. 

We  do  not  controvert  the  principle  that  he  was  bound  to  know 
and  take  notice  of  the  law.  But  as  regards  the  effect  of  the  plea 
and  the  judgment  on  it,  the  constitution  of  Missouri  made  no 
change. 

It  still  remained  the  law  of  Missouri,  as  it  is  the  law  of  every 
state  in  the  Union,  that  so  long  as  the  judgment  rendered  on  that 
plea  remained  in  force,  or  after  it  had  been  executed,  the  defen- 
dant was  liable  to  no  further  prosecution  for  any  charge  found  in 
that  indictment. 

Such  was  the  law  when  the  crime  was  committed,  such  was  the 
law  when  he  pleaded  guilty,  such  is  the  law  now  in  Missouri  and 
everywhere  else.  So  that,  in  pleading  guilty  under  an  agreement 
for  ten  years'  imprisonment,  both  he  and  the  prosecuting  attorney 
and  the  court  all  knew  that  the  result  would  be  an  acquittal  of  all 
other  charges  but  that  of  murder  in  the  second  degree. 

Did  he  waive  or  annul  this  acquittal  by  prosecuting  his  writ  of 
error  ?  Certainly  not  by  that  act,  for  if  the  judgment  of  the  lower 
court  sentencing  him  to  twenty-five  years'  imprisonment  had  been 
affirmed,  no  one  will  assert  that  he  could  still  have  been  tried  for 
murder  in  the  first  degree.  Nor  was  there  anything  else  done  by 
him  to  waive  this  acquittal.  He  refused  to  withdraw  his  plea  of 
guilty.  It  was  stricken  out  by  order  of  the  court  against  his  pro- 
test. He  refused  then  to  plead  not  guilty,  and  the  court  in  like 
manner,  against  his  protest,  ordered  a  general  plea  of  not  guilty  to 
be  filed.  He  refused  to  go  to  trial  on  that  plea,  and  the  court 
forced  him  to  trial.        , 

The  case  rests,  then,  upon  the  proposition  that,  having  an 
erroneous  sentence  rendered  against  him  on  the  plea  accepted  by 


KRING    V.    MISSOURI.  443 

the  court,  he  could  onl}-  take  the  steps  which  the  law  allowed  him 
to  reverse  that  sentence  at  the  hazard  of  subjecting  himself  to  the 
punishment  of  death  for  another  and  a  different  offense  of  which  he 
stood  acquitted  by  the  judgment  of  that  court. 

That  he  prosecuted  his  legal  right  to  a  review  of  that  sentence 
-tt-ith  a  halter  around  his  neck,  when,  if  he  succeeded  in  reversing  it, 
the  same  court  could  tighten  it  to  strangulation,  and  if  he  failed, 
it  did  him  no  good.  And  this  is  precisely  what  has  occurred.  His 
reward  for  proving  the  sentence  of  the  court  of  twenty-five  years' 
imprisonment  (not  its  judgment  on  his  guilt)  to  be  erroneous,  is 
that  he  is  now  to  be  hanged  instead  of  imprisoned  in  the  peniten- 
tiary. No  such  result  could  follow  a  -vNTit  of  error  before,  and  as  to 
this  effect  the  new  constitution  is  clearly  ex  post  facto.  The  whole 
error,  which  results  in  such  a  remarkable  conclusion,  arises  from 
holding  the  provision  of  the  new  constitution  applicable  to  this 
case,  when  the  law  is  ex  post  facto  and  inapplicable  to  it. 

If  Kring  or  his  counsel  were  bound  to  know  the  law  when  they 
prosecuted  the  writ  of  error,  they  were  bound  to  know  it  as  we 
have  expounded  it.  If  they  knew  that  by  the  words  of  the  new 
constitution  such  a  judgment  of  acquittal  as  he  had  when  he  under- 
took to  reverse  it  would  be  no  longer  an  acquittal  after  it  was 
reversed,  they  also  knew  that,  being  as  to  his  case  an  ex  post  facto 
law,  it  could  have  no  such  effect  on  that  judgment.  .  .  . 

The  pro\asion  of  the  constitution  of  Missouri  which  denies  to 
plaintiff  in  error  the  benefit  which  the  previous  law  gave  him  of 
acquittal  of  the  charge  of  murder  in  the  first  degree,  on  conviction 
of  murder  in  the  second  degree,  is,  as  to  his  case,  an  ex  post  facto  law 
within  the  meaning  of  the  Constitution  of  the  United  States,  and 
for  the  error  of  the  Supreme  Court  of  Missouri,  in  holding  other- 
wise, its  judgment  wall  be  reversed,  and  the  case  remanded  to  it, 
wdth  direction  to  reverse  the  judgment  of  the  Criminal  Court  of  St. 
Louis,  and  for  such  further  proceedings  as  are  not  inconsistent 
with  this  opinion;  and  it  is  So  ordered. 

Matthews,  J.,  with  whom  concurred  Waite,  C.  J.,  Bradley, 
J.,  and  Gray,  J.,  dissenting.  .  .  . 

It  must  constantly  be  borne  in  mind,  that  the  plea  of  guilty  of 
murder  in  the  second  degree,  the  legal  effect  of  which,  when  ad- 
mitted, is  the  precise  subject  of  the  question,  was  entered  long 
after  the  new  rule  established  by  the  constitution  of  Missouri  took 
effect;  that  the  prisoner  himself  moved  to  set  it  aside,  and  for  leave 
to  renew  his  plea  of  not  guilty,  on  the  ground  that  he  had  been  mis- 
led into  making  his  plea  of  guilty  under  circumstances  that  w^ould 


444  EX    POST   FACTO    LAWS. 

make  it  operate  as  a  fraud  upon  his  rights,  if  it  were  permitted  to 
stand;  and  that,  because  the  court  denied  this  motion,  he  made  and 
prosecuted  his  appeal  for  a  reversal  of  its  judgment,  in  full  view  of 
the  rule,  then  in  force,  of  the  application  of  which  he  now  complains, 
which  expressly  declared  what  should  be  the  effect  of  such  a  rever- 
sal. .  .  . 

What  rule  of  evidence,  existing  at  the  time  of  the  commission  of 
the  offense,  is  altered  to  the  disadvantage  of  the  prisoner  ?  The 
answer  made  is  this:  that,  at  that  time,  an  accepted  pica  of  guilty 
of  murder  in  the  second  degree  was  conclusive  proof  that  the  pris- 
oner was  not  guilty  of  murder  in  the  first  degree,  and  that  it  was 
abrogated,  so  as  to  deprive  the  prisoner  of  the  benefit  of  it.  But 
while  that  rule  was  in  force,  the  prisoner  had  no  such  evidence  of 
which  he  could  avail  himself.  How,  then,  has  he  been  deprived  of 
any  benefit  from  it  ?  He  had  not,  during  the  period  while  the  rule 
was  in  force,  entered  any  plea  of  guilty  of  murder  in  the  second 
degree,  and  no  such  plea  had  been  admitted  by  the  state.  All  that 
can  be  said  is,  that  if,  while  the  rule  was  in  force,  he  had  entered 
such  a  plea  with  the  consent  of  the  state,  its  legal  effect  would  have 
been  as  claimed,  and  by  its  change  he  has  lost  what  advantage  he 
would  have  had  in  such  a  contingency.  But  it  does  not  follow 
that  such  a  contingency  would  have  happened.  It  was  not  "within 
the  power  of  the  prisoner  to  bring  it  about,  for  it  required  the  con- 
currence and  consent  of  the  state;  and  it  cannot  be  assumed  that, 
under  such  a  rule  and  in  such  a  case,  that  consent  would  have  been 
given.  It  is  not  enough  to  say  that,  under  a  ruhng  of  the  court,  a 
party  might  have  lost  the  benefit  of  certain  evidence,  if  such  evi- 
dence had  existed.  To  predicate  error  in  such  a  case,  it  must  be 
shown  that  the  party  had  evidence  of  which,  in  fact,  he  has  been 
illegally  deprived.  Such  a  case  would  have  been  presented  here, 
if  the  plea  of  guilty  of  murder  in  the  second  degree  had  been  entered 
and  accepted  before  the  constitution  of  1875  took  effect  and  while 
the  old  rule  was  in  force.  Then  the  law  would  have  taken  effect 
upon  the  transaction  between  the  prisoner  and  the  prosecution,  in 
the  acceptance  of  his  plea;  the  status  of  the  prisoner  would  have 
been  fixed  and  declared :  he  would  have  stood  acquitted  of  record  of 
the  charge  of  murder  in  the  first  degree;  and  the  new  rule  would 
have  been  an  ex  post  facto  law  if  it  had  made  him  liable  to  conviction 
and  punishment  for  an  offense  of  which  by  law  he  had  been  declared 
to  be  innocent. 

But,  in  the  circumstances  of  the  present  case,  the  evidence,  of 
which  it  is  said  the  prisoner  has  been  deprived,  came  into  being 


KRING   V.   MISSOURI.  445 

after  the  law  had  been  changed.  It  was  evidence  created  by  the 
law  itself,  for  it  consists  simply  in  a  technical  inference;  and  the 
law  in  force  when  it  was  created  necessarily  determines  its  quality 
and  effect.  That  law  did  not  operate  upon  the  offense  to  change 
its  character;  nor  upon  its  punishment  to  aggravate  it ;  nor  upon 
the  evidence  which,  according  to  the  law  in  force  at  the  time  of  its 
commission,  was  competent  to  prove  or  disprove  it.  It  operated 
upon  a  transaction  between  the  prisoner  and  the  prosecution, 
which  might  or  might  not  have  taken  place;  which  could  not  take 
place  without  mutual  consent;  and  when  it  chd  take  place,  that 
consent  must  be  supposed  to  have  been  given  by  both  with  refer- 
ence to  the  law  as  it  then  existed,  and  not  wdth  reference  to  a  law 
which  had  then  been  re])ealed. 

It  is  the  essential  characteristic  of  an  ex  post  facto  law  that  it 
should  operate  retrospectively,  so  as  to  change  the  law  in  respect  to 
an  act  or  transaction  already  complete  and  past.  Such  is  not  the 
effect  of  the  rule  of  the  constitution  of  Missouri  now  in  question. 
As  has  been  shown,  it  does  not,  in  any  particular,  affect  the  crime 
charged,  either  in  its  definition,  punishment,  or  proof.  It  simply 
declares  what  shall  be  the  legal  effect,  in  the  future,  of  acts  and 
transactions  thereafter  taking  place.  It  enacts  that  any  future 
erroneous  and  unlawful  convnction  for  a  less  offense,  thereafter 
reversed  on  the  application  of  the  accused,  shall  be  held  for  naught, 
to  all  intents  and  purposes,  and  shall  not,  after  such  reversal,  oper- 
ate as  a  technical  acquittal  of  any  higher  grade  of  crime,  for  which 
there  might  have  been  a  conviction  under  the  same  indictment. 
It  imposes  upon  the  prisoner  no  penalty  or  disability.  It  cannot 
affect  the  case  of  any  intUvidual,  except  upon  his  owti  request,  for 
he  must  take  the  first  step  in  its  apphcation.  When  he  pleads 
guilty  of  murder  in  the  second  degree,  he  knows  that  its  accep- 
tance cannot  operate  as  an  acquittal  of  the  higher  offense.  When 
he  asks  to  have  the  conviction  reversed,  he  understands  that  if  his 
application  is  granted,  the  judgment  must  be  set  aside  with  the 
same  effect  as  if  it  had  never  been  rendered.  It  does  not  touch  the 
substance  or  merits  of  his  defense,  and  is  in  itself  a  sensible  and 
just  rule  in  criminal  procedure.  .  .  . 

In  the  case  of  Ex  parte  McCardle,  7  Wall.  506,  it  was  the  unani- 
mous decision  of  the  court,  that  it  was  competent  for  Congress,  in  a 
case  affecting  personal  Hberty,  to  deprive  the  complaining  party  of 
the  benefit  of  an  appeal  from  the  judgment  of  an  inferior  court, 
after  his  appeal  had  taken  effect  and  while  it  was  pending.  It 
would   have    been   equally   competent   for   the   constitution   of 


446  EX    POST    FACTO    LAWS. 

Missouri  to  have  declared  that  no  appeal  or  writ  of  error  should 
thereafter  be  allowed  to  reverse  the  judgment  of  the  court  of  original 
jurisdiction  in  any  pending  criminal  cause,  which  certainly  would 
be  giving  a  different,  because  irreversible,  effect  to  that  judgment 
from  what  such  judgments  would  have  had  under  the  law  in  force 
when  the  offense  was  committed.  If  it  be  true,  in  the  logic  of 
the  law,  as  it  is  in  all  its  other  applications,  that  the  greater  in- 
cludes the  less,  then  it  was  competent  for  that  constitution  to 
provide  that,  as  to  all  judgments  in  criminal  cases  thereafter 
rendered,  which  should  be  reversed  for  error,  on  the  appeal  of 
the  defendant,  the  effect  of  the  reversal  should  be  such  as  not  to  be 
a  bar  to  a  subsequent  conviction  for  any  crime  described  in  the 
indictment;  for  that  woukl  have  been  to  say,  not  that  there  shall 
be  no  appeal  at  all,  but  that  if  an  appeal  is  taken  its  effect  shall  only 
be  such  as  is  prescribed  in  the  law  allowing  it.  .  .  . 

The  rule  of  law  in  Missouri,  the  benefit  of  which  is  claimed  for  the 
prisoner  in  this  proceeding,  notwthstanding  its  repeal  by  the 
constitution  of  the  state  before  it  could  have  been  ajiplied  in  his 
case,  was  established,  not  by  statute,  but  by  a  series  of  judicial 
decisions  of  the  Supreme  Court  of  the  state.  Those  decisions 
might  at  any  time  have  been  reversed  by  the  same  tribunal,  and  a 
new  rule  introduced,  such  as  that  actually  declared  by  the  con- 
stitution. In  that  event,  could  it  be  said,  with  any  plausibility, 
that  the  later  decisions,  reversing  the  law  as  previously  understood, 
could  not  be  applied  to  all  subsequent  proceetlings  in  cases  where, 
upon  a  plea  of  guilty  of  murder  in  the  second  degree  thereafter 
entered  and  accepted,  an  erroneous  judgment  thereon  had  been 
reversed,  notwithstanding,  when  the  offense  was  committed,  the 
prior  decisions  had  been  in  force  ?  Would  the  new  rule,  as  intro- 
tuced  and  appHed  by  the  later  judicial  decisions,  be  in  violation  of 
the  probihition  of  the  Constitution  of  the  United  States  against 
ex  post  facto  laws  ?  But  the  constitution  of  Missouri  has  done  no 
more  than  this. 

The  nature  and  operation  of  the  rule  are  not  affected  l)y  any 
pecuHarity  in  the  authority  which  establishes  it.  If  it  is  not 
objectionable  as  an  ex  post  facto  law,  when  introduced  by  judicial 
decision,  it  is  because  it  is  not  so  in  its  nature;  and,  if  not,  it  does 
not  become  so  when  introduced  by  a  legislative  declaration. 

There  are  doubtless  many  matters  of  mere  procedure  which 
are  of  vital  consequence;  but  in  respect  to  them  the  power  of  Con- 
gress, as  to  crimes  against  the  United  States,  is  restrained  by  posi- 
tive and  specific  limitations,  carefully  inserted  in  the  organic  law. 


HOPT    V.    UTAH.  447 

.  .  .  The  prohibition  against  bills  of  attainder  is  the  only  one  of 
this  class  which  applies  to  both  the  government  of  the  United 
States  and  those  of  the  states;  and  while  a  bill  of  attainder  may  be 
an  ex  post  facto  law,  it  is  not  necessarily  so,  as  it  may  be  merely  a 
matter  of  procedure,  a  trial  by  a  legislative  instead  of  a  judicial 
body. 

But,  in  addition  to  these  matters  of  procedure,  which  are 
specially  protected  against  legislative  change,  either  for  the  past 
or  the  future,  there  may  be  others,  in  which  changes  ^^^th  a  retro- 
spective effect  are  forbidden  by  the  prohibition  against  ex  post  facto 
laws.  Such,  we  have  already  seen,  would  be  laws  which  authorize 
conviction  upon  less  evidence  than  was  required  at  the  time  of  the 
commission  of  the  offense,  or  which  altered,  to  the  disadvantage 
of  the  accused,  the  nature  and  quantity  of  proof  at  that  time 
required  to  substantiate  a  legal  defence;  or  which,  in  other  words, 
gave  to  the  circumstances  which  constituted  and  attended  the  ac'.  a 
legal  signification  more  injurious  to  the  accused  than  was  attached 
to  them  by  the  law  existing  at  the  time  of  the  transaction. 

It  is  doubtless  quite  true  that  it  is  difficult  to  draw  the  line  in 
particular  cases  beyond  which  legislative  power  over  remedies  and 
procedure  cannot  pass  without  touching  upon  the  substantial 
rights  of  the  parties  affected,  as  it  is  impossible  to  fix  that  boundary 
by  any  general  words.  The  same  difficulty  is  encountered,  as  the 
same  principle  applies,  in  determining,  in  civil  cases,  how  far  the 
legislature  may  modify  the  remedy  without  impairing  or  enlarging 
the  obligation  of  contracts.  .  ,  . 


HOPT  V.   UTAH. 
Supreme  Court  of  the  United  States.     1884. 
[110  United  States,  574.] ' 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

Hopt  and  Emerson  were  jointly  indicted  in  a  Utah  court  for 
murder,  and  were  tried  separately.  Hopt  was  found  guilty,  and 
the  judgment  was  affirmed  by  the  Supreme  Court  of  the  territory, 
but  reversed  by  the  Supreme  Court  of  the  United  States  (104  U.  S. 

^  The  reporter's  etatement  has  not  been  reprinted.  —  Ed. 


448  EX  POST  FACTO  LAWS. 

631).  At  the  second  trial,  Emerson,  who  had  been  convicted  of  the 
murder  and  was  serving  a  sentence  for  it,  was  admitted  as  a  witness 
against  Hopt,  notwithstanding  objection.  When  the  murder  was 
committed,  a  person  convicted  of  felony  was  by  statute  incapa- 
citated as  a  witness,  unless  he  had  been  pardoned  or  the  judgment 
had  been  reversed;  but  between  the  two  trials  this  statutory 
provision  was  repealed.  Hopt  was  convicted.  The  judgment  was 
affirmed  by  the  Supreme  Court  of  the  territory.  Then  this  ^\Tit  of 
error  was  taken;  and  several  errors  were  assigned,  inclutling  the 
admission  of  the  testimony  of  Emerson. 

T.  Marshall  and  L.  J.  Sharp,  for  plaintiff  in  error;  and  Maury, 
Assistant  Attorney  General,  contra. 

Harlan,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

For  the  reasons  stated,  the  judgment  of  the  Supreme  Court  of  the 
territory  must  be  reversed  and  the  case  remanded,  Avith  directions 
that  the  verdict  and  judgment  be  set  aside  and  a  new  trial  or- 
dered. 

The  assignments  of  error,  however,  present  other  questions  of 
importance  which,  as  they  are  likely  to  arise  upon  another  trial, 
we  deem  proper  to  examine.  .  .  . 

It  i«  insisted  that  the  act  .  .  .  would,  as  to  this  case,  be  an  ex 
post  facto  law,  within  the  meaning  of  the  Constitution  of  the 
United  States,  in  that  it  permitted  the  crime  charged  to  be  estal)- 
lished  by  witnesses  whom  the  law,  at  the  time  the  homicide  was 
committed,  made  incompetent  to  testify  in  any  case  whatever.  .  .  . 

Statutes  which  simply  enlarge  the  class  of  persons  who  may  be 
competent  to  testify  in  criminal  cases  are  not  ex  post  facto  in  their 
application  to  prosecutions  for  crimes  committed  prior  to  their 
passage;  for  they  do  not  attach  criminality  to  any  act  previously 
done,  and  which  was  innocent  when  done;  nor  aggravate  any 
crime  theretofore  committed;  nor  provide  a  greater  punishment 
therefor  than  was  prescribed  at  the  time  of  its  commission;  nor  do 
they  alter  the  degree,  or  lessen  the  amount  or  measure,  of  the  proof 
which  was  made  necessary  to  conviction  when  the  crime  was  com- 
mitted. 

The  crime  for  which  the  present  defendant  was  indicted,  the 
punishment  prescribed  therefor,  and  the  quantity  or  the  degree 
of  proof  necessary  to  estabhsh  his  guilt,  all  remained  unaffected 
by  the  subsequent  statute.  Any  statutory  alteration  of  the  legal 
rules  of  evidence  which  would  authorize  conviction  upon  less 
proof,  in  amount  or  degree,  than  was  required  when  the  offense  was 
committed,  might,  in  respect  of  that  offense,  be  obnoxious  to  the 


MEDLEY,    PETITIONER.  449 

constitutional  inhibition  upon  ex  post  facto  laws.  But  alterations 
which  do  not  increase  the  punishment,  nor  change  the  ingredients 
of  the  offense  or  the  ultimate  facts  necessary  to  establish  guilt, 
but  —  leaving  untouched  the  nature  of  the  crime  and  the  amount 
or  degree  of  proof  essential  to  conviction  —  only  remove  existing 
restrictions  upon  the  competency  of  certain  classes  of  persons  as 
witnesses,  relate  to  modes  of  procedure  only,  in  which  no  one  can  be 
said  to  have  a  vested  right,  and  which  the  state,  upon  grounds  of 
public  policy,  may  regulate  at  pleasure.  Such  regulations  of  the 
mode  in  which  the  facts  constituting  guilt  may  be  placed  before  the 
jury,  can  be  made  applicable  to  prosecutions  or  trials  thereafter 
had,  without  reference  to  the  date  of  the  commission  of  the  offense 
charged.  Judgment  reversed. 


IVIEDLEY,    Petitioner. 
Supreme  Court  of  the  United  States.     1890. 

[134  United  States,  160.]  ^ 

Original. 

This  was  an  appHcation  by  Medley  for  a  writ  of  habeas  corpus, 
the  object  being  to  relieve  him  from  imprisonment  by  the  warden 
of  the  penitentiary  of  Colorado  under  the  terms  of  a  sentence  of 
death  pronounced  by  the  District  Court  of  the  State  of  Colorado  for 
the  County  of  Arapahoe  under  an  indictment  charging  the  peti- 
tioner with  a  murder  committed  on  May  13,  1889.  The  petitioner 
was  sentenced  in  accordance  with  a  statute  which  was  approved  on 
April  19,  1889,  and  which  went  into  effect  on  July  19,  1889, 
repealing  —  wthout  a  saving  clause  —  all  acts  and  parts  of  acts 
inconsistent  therewith  (Session  Laws,  1889,  p.  118).  The  peti- 
tioner enumerated  some  twenty  variances  between  the  statute  in 
force  at  the  time  of  the  crime  and  the  new  statute,  all  of  which 
he  claimed  were  to  his  prejudice  and  hence  in  conflict  wdth 
Article  I.,  section  10,  clause  1,  of  the  Constitution  of  the  United 
States. 

W.  V.  R.  Berry  and  others,  for  petitioner;  and  H.  M.  Teller  and 
A.  W.  Jones,  contra. 

1  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


450  EX   POST   FACTO   LAWS. 

Miller,  J.,  delivered  the  opinion  of  the  court.  .  .  , 

It  is  unnecessary  to  examine  all  the  points  in  which,  according  to 
the  argument  for  plaintiff,  the  new  statute  was  ex  post  facto;  there- 
fore we  shall  notice  only  a  few  of  those  which  appear  to  us  most 
deserving  of  attention,  and  in  doing  this  we  shall  compare  the  new 
statute  with  the  one  which  it  superseded  and  repealed. 

The  first  of  these,  and  perhaps  the  most  important,  is  that  which 
declares  that  the  warden  shall  keep  such  convict  in  solitary  con- 
finement until  the  infliction  of  the  death  penalty.  The  former  law, 
the  act  of  1883,  contained  no  such  provision.  It  declared  that 
every  person  convicted  of  murder  in  the  first  degree  should  suffer 
death,  and  every  person  convicted  of  murder  of  the  second  degree 
should  suffer  imprisonment  in  the  penitentiary  for  a  term  of  not 
less  than  ten  years,  which  might  extend  to  life;  and  it  declared  that 
the  manner  of  inflicting  the  punishment  of  death  should  be  by 
hanging  the  person  convicted  by  the  neck  until  death,  at  such  time 
as  the  court  should  direct,  not  less  than  fifteen  nor  more  than 
twenty-five  days  from  the  time  sentence  was  pronounced,  unless 
for  good  cause  the  court  or  governor  might  prolong  the  time.  The 
prisoner  was  to  be  kept  in  the  county  jail  under  the  control  of  the 
sheriff  of  the  count}'',  who  was  the  officer  charged  with  the  execution 
of  the  sentence  of  the  court.  Solitary  confinement  was  neither 
authorized  by  the  former  statute,  nor  was  its  practice  in  use  in 
regard  to  prisoners  awaiting  the  punishment  of  death.  .  .  . 

This  matter  of  solitary  confinement  is  not  ...  a  mere  unim- 
portant regulation  as  to  the  safe-keeping  of  the  prisoner,  and  is  not 
reheved  of  its  objectionable  features  by  the  qualifying  language, 
that  no  person  shall  be  allowed  access  to  said  convict  except  his 
attendants,  counsel,  physician,  a  spiritual  adviser  of  his  own 
selection,  and  members  of  his  family,  and  then  only  in  accordance 
with  prison  regulations. 

Solitary  confinement  as  a  punishment  for  crime  has  a  very 
interesting  history  of  its  own,  in  almost  all  countries  where  impris- 
onment is  one  of  the  means  of  punishment.  In  a  very  exhaustive 
article  on  this  subject  in  the  American  Cyclopaedia,  Volume  XIII., 
under  the  word  "  Prison  "  this  history  is  given.  In  that  article 
it  is  said  that  the  first  plan  adopted  when  public  attention  was 
called  to  the  evils  of  congregating  persons  in  masses  without 
employment,  was  the  solitary  prison  connected  with  the  Hospital 
San  Michele  at  Rome,  in  1703,  but  little  knowoi  prior  to  the  experi- 
ment in  Walnut  Street  Penitentiary  in  Philadelphia  in  1787.  The 
pecuKarities  of  this  system  were  the  complete  isolation  of  the 


MEDLEY,    PETITIONER.  451 

prisoner  from  all  human  societj',  and  his  confinement  in  a  cell  of 
considerable  size,  so  arranged  that  he  had  no  direct  intercourse  with 
or  sight  of  any  human  being,  and  no  emplojTnent  or  instruc- 
tion. .  .  .  But  experience  demonstrated  that  there  were  serious 
objections  to  it.  A  considerable  number  of  the  prisoners  fell,  after 
even  a  short  confinement,  into  a  semi-fatuous  condition,  from  which 
it  was  next  to  impossible  to  arouse  them,  and  others  became 
violently  insane;  others,  still,  committed  suicide;  while  those 
who  stood  the  ordeal  better  were  not  generalh^  reformed,  and  in 
most  cases  did  not  recover  sufficient  mental  activity  to  be  of  any 
subsequent  service  to  the  community.  .  .  . 

It  is  to  this  mode  of  imprisonment  that  the  phrase  solitary  con- 
finement has  been  applied  in  nearly  all  instances  where  it  is  used, 
and  it  means  this  exclusion  from  human  associations;  where  it  is 
intended  to  mitigate  it  by  any  statutory  enactment  or  by  any 
regulations  of  persons  ha\'ing  authority  to  do  so,  it  is  by  express 
exceptions  and  modifications  of  the  original  principle  of  "  solitary 
confinement."  The  statute  of  Colorado  is  undoubtedly  framed  on 
this  idea.  Instead  of  confinement  in  the  ordinary  county  prison 
of  the  place  where  he  and  his  friends  reside;  where  they  may, 
under  the  control  of  the  sheriff,  see  him  and  visit  him;  where  the 
sheriff  and  his  attendants  must  see  him;  where  his  religious 
adviser  and  his  legal  counsel  may  often  visit  him  without  any 
hindrance  of  law  on  the  subject,  the  convict  is  transferred  to  a  place 
where  inprisonment  always  implies  disgrace,  and  which,  as  this 
court  has  judicially  decided  in  Ex  parte  Wilson,  114  U.  S.  417; 
Mackin  v.  United  States,  117  U.  S.  348;  Parkinson  v.  United 
States,  121  U.  S.  281;  and  United  States  v.  De  Walt,  128  U.  S.  393, 
is  itself  an  infamous  punishment,  and  is  there  to  be  kept  in  "  soli- 
tary confinement,"  the  primary  meaning  of  which  phrase  we  have 
already  explained.  .  .  . 

The  act  25  George  II.,  c.  37,  entitled  "  An  act  for  the  better 
preventing  the  horrid  crime  of  murder,"  is  preceded  by  the  follow- 
ing preamble:  "  Whereas,  the  horrid  crime  of  murder  has  of  late 
been  more  frequently  perpetrated  than  formerly;  and  whereas 
it  is  thereby  become  necessary  that  some  further  terror  and  peculiar 
mark  of  infamy  be  added  to  the  punishment  of  death  now  by  law 
upon  such  as  shall  be  guilty  of  the  said  offense  "  —  then  follow 
certain  enactments,  the  sixth  section  of  which  reads  as  follows: 
"  Be  it  further  enacted.  That  from  and  after  such  conviction  and 
judgment  given  thereupon,  the  jailor  or  keeper  to  whom  such 
criminal  shall  be  delivered  for  safe  custody  shall  confine  such 


452  EX   POST   FACTO   LAWS. 

prisoner  to  some  cell  separate  and  apart  from  the  other  prisoners, 
and  that  no  person  or  persons  whatsoever,  except  the  jailor  or 
keeper,  or  his  servants,  shall  have  access  to  any  such  prisoner, 
without  Ucense  being  first  obtained." 

This  statute  is  very  pertinent  to  the  case  before  us,  as  showing, 
first,  what  was  understood  by  solitary  confinement  at  that  day, 
and,  second,  that  it  was  considered  as  an  additional  punishment  of 
such  a  severe  kind  that  it  is  spoken  of  in  the  preamble  as  "  a  further 
terror  and  peculiar  mark  of  infamy  "  to  be  added  to  the  punishment 
of  death.  .  .  . 

It  seems  to  us  that  the  considerations  which  we  have  here  sug- 
gested show  that  the  solitary  confinement  to  which  the  prisoner  was 
subjected  by  the  statute  of  Colorado  of  1889,  and  by  the  judgment 
of  the  court  in  pursuance  of  that  statute,  was  an  additional  punish- 
ment of  the  most  important  and  painful  character,  and  is,  there- 
fore, forbidden  by  this  provision  of  the  Constitution  of  the  United 
States, 

Another  provision  of  the  statute,  which  is  supposed  to  be  liable 
to  this  objection,  of  its  ex  jwst  facto  character,  is  found  in  section  3, 
in  which  the  particular  day  and  hour  of  the  execution  of  the  sen- 
tence within  the  week  specified  by  the  warrant  shall  be  fixed  by  the 
warden,  and  he  shall  invite  to  be  present  certain  persons  named,  to 
wit,  a  chaplain,  a  physician,  a  surgeon,  the  spiritual  adviser  of  the 
convict,  and  six  reputable  citizens  of  the  state  of  full  age,  and  that 
the  time  fixed  by  said  warden  for  such  execution  shall  be  by  him 
kept  secret,  and  in  no  manner  divulged  except  privately  to  said 
persons  invited  by  him.  .  .  . 

Objections  are  made  to  this  provision  as  being  a  departure  from 
the  law  as  it  stood  before,  and  as  being  an  additional  punishment 
to  the  prisoner,  and  therefore  ex  post  facto. 

It  is  obvious  that  it  confers  upon  the  warden  of  the  penitentiary 
a  power  which  had  heretofore  been  solely  confided  to  the  court; 
and  is  therefore  a  departure  from  the  law  as  it  stood  when  the 
crime  was  committed. 

Nor  can  we  withhold  our  conviction  of  the  proposition  that 
when  a  prisoner  sentenced  by  a  court  to  death  is  confined  in  the 
penitentiary  awaiting  the  execution  of  the  sentence,  one  of  the 
most  horrible  feelings  to  which  he  can  be  subjected  during  that 
time  is  the  uncertainty  during  the  whole  of  it,  which  may  exist  for 
the  period  of  four  weeks,  as  to  the  precise  time  when  his  execution 
shall  take  place.  Notwithstanding  the  argument  that  under  all 
former  systems  of  administering  capital  punishment  the  officer 


MEDLEY,    PETITIONER.  453 

appointed  to  execute  it  had  a  right  to  select  the  time  of  the  day 
when  it  should  be  done,  this  new  power  of  fixing  any  day  and  hour 
during  a  period  of  a  week  for  the  execution  is  a  new  and  important 
power  conferred  on  that  officer,  and  is  a  departure  from  the  law  as  it 
existed  at  the  time  the  offense  was  committed,  and  with  its  secrecy 
must  be  accompanied  by  an  immense  mental  anxiety  amounting 
to  a  great  increase  of  the  offender's  punishment.  .  .  . 

These  considerations  render  it  our  duty  to  order  the  release  of 
the  prisoner  from  the  custody  of  the  warden  of  the  penitentiary  of 
Colorado,  as  he  is  now  held  by  him  under  the  judgment  and  order 
of  the  court.  .  .  .^ 

Brewer,  J.  (with  whom  concurred  Bradley,  J.),  dissent- 
ing. .  .  . 

The  substantial  punishment  imposed  by  each  statute  is  death  by 
hanging.  The  differences  between  the  two,  as  to  the  manner  in 
which  this  sentence  of  death  shall  be  carried  into  execution  are 
trifling. 

What  are  they  ?  By  the  old  law,  execution  must  be  within 
twenty-five  days  from  the  day  of  sentence.  By  the  new,  within 
twenty-eight  days.  By  the  old,  confinement  prior  to  execution 
was  in  the  county  jail.  By  the  new,  in  the  penitentiary.  By  the 
old,  the  sheriff  was  the  hangman.  By  the  new,  the  warden. 
Under  the  old,  no  one  had  a  right  of  access  to  the  condemned 
except  his  counsel,  though  the  sheriff  might,  in  his  discretion, 
permit  any  one  to  see  him.  By  the  new,  his  attendants,  counsel, 
physician,  spiritual  adviser  and  members  of  his  family  have  a 
right  of  access,  and  no  one  else  is  permitted  to  see  him.  Under  the 
old,  his  confinement  might  be  absolutely  solitary,  at  the  discretion 
of  the  sheriff,  with  but  a  single  interruption.  Under  the  new, 
access  is  given  to  him  as  a  matter  of  right,  to  all  who  ought  to  be 
permitted  to  see  him..  True,  access  is  subject  to  prison  regulations; 
so,  in  the  jail,  the  single  authorized  access  of  counsel  was  subject 
to  jail  regulations.  It  is  not  to  be  assumed  that  either  regulations 
would  be  unreasonable,  or  operate  to  prevent  access  at  any  proper 
time.  Surely,  when  all  who  ought  to  see  the  condemned  have  a 
right  of  access,  subject  to  the  regulations  of  the  prison,  it  seems  a 
misnomer  to  call  this  "  solitary  confinement,"  in  the  harsh  sense  in 
which  this  phrase  is  sometimes  used.  All  that  is  meant  is,  that  a 
condemned  murderer  shall  not  be  permitted  to  hold  anything  like 
a  public  reception;  and  that  a  gaping  crowd  shall  be  excluded 
from  his  presence.     Again,  by  the  old  law,  the  sheriff  fixes  the  hour 

1  Compare  Holden  v.  Minnesota,  137  U.  S.  483  (1890).  —  Ed. 


454  EX    POST    FACTO    LAWS. 

within  a  prescribed  day.  By  the  new,  the  warden  fixes  the  hour 
and  day  within  a  named  week.  And  these  are  all  the  differences 
which  the  court  can  find  between  the  two  statutes,  worthy  of 
mention. 

Was  there  ever  a  case  in  which  the  maxim,  "  De  minimis  non 
curat  lex,"  had  more  just  and  wholesome  application  ?  Yet,  on 
account  of  these  differences,  a  convicted  murderer  is  to  escape  the 
death  he  deserves  and  be  turned  loose  on  society.  .  .  . 


HAWKER  V.   NEW  YORK. 

Supreme  Court  of  the  United  States.     1898. 

[170  United  States,  189.]  i 

Error  to  the  Court  of  General  Sessions  of  the  Peace  for  the  City 
and  County  of  New  York,  in  the  State  of  New  York. 

In  the  Court  of  General  Sessions  Hawker  was  indicted  under  the 
following  provision  of  the  Public  Health  Law,  passed  by  the  legis- 
lature of  New  York  in  1893,  as  amended  in  1895:  "  Any  person 
who  .  .  .  after  conviction  of  a  felony,  shall  attempt  to  practise 
medicine,  or  shall  so  practise,  .  .  .  shall  be  guilty  of  a  misde- 
meanor "  (Laws,  1895,  c.  398,  s.  153).  The  indictment  alleged 
that  Hawker  had  been  convicted  of  a  felony  in  1878,  in  the  same 
court,  and  that  in  1896  he  practised  medicine  in  the  city  of  New 
York.  A  demurrer  to  the  indictment  was  overruled;  and  upon  a 
plea  of  not  guilty  Hawker  was  convicted  and  sentenced  to  pay  a 
fine  of  1250.  That  conviction  having  been  sustained  by  the  Court 
of  Appeals  of  the  state  (152  N.  Y.  234),  and  a  remittitur  sent 
down,  final  judgment  was  entered  in  the  Court  of  General  Sessions. 

H.  0.  Pentecost,  for  plaintiff  in  error;  and  R.  C.  Taylor  and  others, 
contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  single  question  presented  is  as  to  the  constitutionality  of 
this  statute  when  applied  to  one  who  had  been  convicted  of  a 
felony  prior  to  its  enactment.  .  .  .  The  arguments  for  and 
against  this  contention  may  be  thus  briefly  stated. 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


HAWKER    V.    NEW    YORK.  455 

On  the  one  hand  it  is  said  that  defendant  was  tried,  convicted 
and  sentenced  for  a  criminal  offense.  He  suffered  the  punishment 
pronounced.  The  legislature  has  no  power  to  thereafter  add  to 
that  punishment.  The  right  to  practise  medicine  is  a  valuable 
property  right.  To  deprive  a  man  of  it  is  in  the  nature  of  punish- 
ment, and  after  the  defendant  has  once  fully  atoned  for  his  offense 
a  statute  imposing  this  additional  penalty  is  one  simply  increasing 
the  punishment  for  the  offense,  and  is  ex  post  facto. 

On  the  other,  it  is  insisted  that  within  the  acknowledged  reach 
of  the  police  power,  a  state  may  prescribe  the  qualifications  of  one 
engaged  in  any  business  so  cUrectly  affecting  the  lives  and  health  of 
the  people  as  the  practice  of  medicine.  It  may  require  both  quaU- 
fications  of  learning  and  of  good  character,  and,  if  it  deems  that  one 
who  has  \nolated  tlie  criminal  laws  of  the  state  is  not  possessed  of 
sufficient  good  character,  it  can  deny  to  such  a  one  the  right  to 
practise  medicine,  and,  further,  it  may  make  the  record  of  a  con- 
\action  conclusive  evidence  of  the  fact  of  the  violation  of  the  crimi- 
nal law  and  of  the  absence  of  the  requisite  good  character.  In 
support  of  this  latter  argument  counsel  for  the  state,  besides  refer- 
ring to  the  legislation  of  many  states  prescribing  in  a  general  way 
good  character  as  one  of  the  qualifications  of  a  ph3'sician,  has  made 
a  collection  of  special  provisions  as  to  the  effect  of  a  conviction  of 
felony.  .  .  . 

We  are  of  opinion  that  this  argument  is  the  more  applicable 
and  must  control  the  answer  to  this  question.  No  precise  limits 
have  been  placed  upon  the  police  power  of  a  state,  and  yet  it  is 
clear  that  legislation  which  simply  defines  the  qualifications  of  one 
who  attempts  to  practise  medicine  is  a  proper  exercise  of  that 
power.  Care  for  the  pubhc  health  is  something  confessedly 
belonging  to  the  domain  of  that  power.  The  physician  is  one 
whose  relations  to  life  and  health  are  of  the  most  intimate  character. 
It  is  fitting  not  merely  that  he  should  possess  a  knowledge  of  chs- 
eases  and  their  remedies,  but  also  that  he  should  be  one  who  may 
safely  be  trusted  to  apply  those  remedies.  Character  is  as  im- 
portant a  qualification  as  knowledge,  and  if  the  legislature  may 
properly  require  a  definite  course  of  instruction,  or  a  certain  ex- 
amination as  to  learning,  it  may  with  equal  propriety  prescribe 
what  e\'idence  of  good  character  shall  be  furnished.  These  prop- 
ositions have  been  often  affirmed.  .  .  . 

But  if  a  state  may  require  good  character  as  a  condition  of  the 
practice  of  medicine,  it  may  rightfully  determine  what  shall  be  the 
evidences  of  that  character.     We  do  not  mean  to  say  that  it  has  an 


456  EX    POST    FACTO    LAWS. 

arbitrary  power  in  the  matter,  or  that  it  can  make  a  conclusive 
test  of  that  which  has  no  relation  to  character,  but  it  may  take 
whatever,  according  to  the  experience  of  mankind,  reasonably 
tends  to  prove  the  fact  and  make  it  a  test.  County  Seat  of  Linn 
County,  15  Kansas,  500,  528.  .  .  . 

It  is  not  open  to  doubt  that  the  commission  of  crime,  the  viola- 
tion of  the  penal  laws  of  a  state,  has  some  relation  to  the  question 
of  character.  It  is  not,  as  a  rule,  the  good  people  who  commit 
crime.  When  the  legislature  declares  that  whoever  has  violated 
the  criminal  laws  of  the  state  shall  be  deemed  lacking  in  good 
moral  character  it  is  not  laying  down  an  arbitrary  or  fanciful  rule 
—  one  having  no  relation  to  the  subject-matter,  but  is  only  appeal- 
ing to  a  well  recognized  fact  of  human  experience;  and  if  it  may 
make  a  violation  of  criminal  law  a  test  of  bad  character,  what 
more  conclusive  evidence  of  the  fact  of  such  violation  can  there  be 
than  a  conviction  duly  had  in  one  of  the  courts  of  the  state  ?  The 
conviction  is,  as  between  the  state  and  the  defendant,  an  adjudica- 
tion of  the  fact.  So  if  the  legislature  enacts  that  one  who  has  been 
convicted  of  crime  shall  no  longer  engage  in  the  practice  of  medi- 
cine, it  is  simply  applying  the  doctrine  of  res  judicata  and  invoking 
the  conclusive  adjudication  of  the  fact  that  the  man  has  violated 
the  criminal  law,  and  is  presumptively,  therefore,  a  man  of  such 
bad  character  as  to  render  it  unsafe  to  trust  the  lives  and  health  of 
citizens  to  his  care. 

That  the  form  in  which  this  legislation  is  cast  suggests  the  idea 
of  the  imposition  of  an  additional  punishment  for  past  offenses  is 
not  conclusive.  We  must  look  at  the  substance  and  not  the  form, 
and  the  statute  should  be  regarded  as  though  it  in  terms  declared 
that  one  who  had  violated  the  criminal  laws  of  the  state  should  be 
deemed  of  such  bad  character  as  to  be  unfit  to  practise  medicine, 
and  that  the  record  of  a  trial  and  conviction  should  be  conclusive 
evidence  of  such  violation.  All  that  is  embraced  in  these  proposi- 
tions is  condensed  into  the  single  clause  of  the  statute,  and  it  means 
that  and  nothing  more.  The  state  is  not  seeking  to  further  punish 
a  criminal,  but  only  to  protect  its  citizens  from  physicians  of  bad 
character.  The  vital  matter  is  not  the  con\action,  but  the  \'iolation 
of  law.  The  former  is  merely  the  prescribed  evidence  of  the  latter. 
Suppose  the  statute  had  contained  only  a  clause  declaring  that  no 
one  should  be  permitted  to  act  as  a  physician  who  had  violated  the 
criminal  laws  of  the  state,  leaving  the  question  of  violation  to  be 
determined  according  to  the  ordinary  rules  of  evidence,  would  it 
not  seem  strange  to  hold  that  that  which  conclusively  established 


THOMPSON   V.   UTAH. 


457 


the  fact  effectually  relieved  from  the  consequences  of  such  viola- 
tion ? 

It  is  no  answer  to  say  that  this  test  of  character  is  not  in  all 
cases  absolutely  certain,  and  that  sometimes.it  works  harshly. 
Doubtless,  one  who  has  violated  the  criminal  law  may  thereafter 
reform  and  become  in  fact  possessed  of  a  good  moral  character. 
But  the  legislature  has  power  in  cases  of  this  kind  to  make  a  rule  of 
universal  appUcation,  and  no  inquiry  is  permissible  back  of  the  rule 
to  ascertain  whether  the  fact  of  which  the  rule  is  made  the  absolute 
test  does  or  does  not  exist.  ... 

Defendant  rehes  largely  on  Cummings  v.  Missouri,  4  Wall. 
277,  and  Ex  parte  Garland,  4  Wall.  333.  ...  It  was  held  that, 
as  many  of  the  matters  provided  for  in  these  oaths  had  no  relation 
to  the  fitness  or  qualification  of  the  two  parties,  the  one  to  follow 
the  profession  of  a  minister  of  the  gospel  and  the  other  to  act  as  an 
attorney  and  counsellor,  the  oaths  should  be  considered  not 
legitimate  tests  of  qualification,  but  in  the  nature  of  penalties  for 
past  offenses.  .  .  .  Affirmed. 

HARL.VN,  J.,  with  whom  concurred  Peckham  and  McKenna, 
J  J.,  dissenting.  .  .  . 


THOMPSON   V.   UTAH. 
Supreme  Court  of  the  United  States.     1898. 

[170  United  States,  343.]  '■ 

Error  to  the  Supreme  Court  of  the  State  of  Utah. 

In  the  District  Court  of  the  Second  Judicial  District  of  the 
Territory  of  Utah,  Thompson  was  indicted  for  grand  larceny, 
charged  to  have  been  committed  in  the  territory  in  1895,  and  was 
found  guilty  by  a  jurj'  of  twelve.  A  new  trial  ha\-ing  been  granted 
and  the  case  ha\dng  been  removed  to  another  county,  he  was  again 
found  guilty.  This  second  trial  was  had  after  the  admission  of 
Utah  as  a  state,  and  the  jurj',  in  accordance  \\'ith  the  state  con- 
stitution (Art.  I,  sec.  10),  was  composed  of  eight  jurors.  On  the 
ground,  among  others,  that  by  the  law  in  force  at  the  time  of  the 
alleged  crime  the  jury  must  be  composed  of  twelve  (2  Compiled 

I  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


458  EX    POST    FACTO    LAWS. 

Laws,  1888,  §§  3065,  4380,  4643,  4644,  4790,  4997),  there  was  a 
motion  for  a  new  trial.  This  was  overruled,  and  eventually  the 
judgment  of  conviction  was  affirmed  by  the  Supreme  Court  of  the 

state. 

J.  W.  W.  Whitecotton,  for  plaintiff  in  error;  and  L.  T.  Michener 
and  others,  contra. 

Harlan,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

As  the  offense  of  which  the  plaintiff  in  error  was  convicted  was  a 
felony,  and  as  by  the  law  in  force  when  the  crime  was  committed  he 
could  not  have  been  tried  by  a  jury  of  a  less  number  than  twelve 
jurors,  the  question  is  presented  whether  the  provision  in  the 
constitution  of  Utah,  providing  for  a  jury  of  eight  persons  in  courts 
of  general  jurisdiction,  except  in  capital  cases,  can  be  made  appli- 
cable to  a  felony  committed  within  the  limits  of  the  state  while  it 
was  a  territory,  wdthout  bringing  tliat  provision  into  conflict  with 
the  clause  of  the  Constitution  of  the  United  States  prohibiting  the 
passage  by  any  state  of  an  ex  post  facto  law.  .  .  . 

The  provisions  of  the  national  Constitution  relating  to  trials  by 
jury  for  crimes  and  to  criminal  prosecutions  apjjly  to  the  terri- 
tories of  the  United  States.  .  .  . 

The  next  inquiry  is  whether  the  jury  referred  to  in  the  original 
Constitution  and  in  the  Sixth  Amendment  is  a  jury  constituted, 
as  it  was  at  common  law,  of  twelve  persons,  neither  more  nor  less. 
2  Hale's  P.  C.  161;  1  Chitty's  Cr.  Law,  505.  This  question  must 
be  answered  in  the  affirmative.  .  .  .  The  word  "  jury  "  and  the 
words  "trial  by  jury  "  were  placed  in  the  Constitution  of  the  United 
States  with  reference  to  the  meaning  affixed  to  them  in  the  law  as 
it  was  in  this  country  and  in  England  at  the  time  of  the  adoption  of 
that  instrument;  and  that  when  Thompson  committed  the  offense 
of  grand  larceny  in  the  Territory  of  Utah  —  which  was  under  the 
complete  jurisdiction  of  the  United  States  for  all  purposes  of  govern- 
ment and  legislation  —  the  supreme  law  of  the  land  required  that 
he  should  be  tried  by  a  jury  composed  of  not  less  than  twelve 
persons.  And  such  was  the  requirement  of  the  statutes  of  Utah 
while  it  was  a  territory. 

Was  it  then  competent  for  the  State  of  Utah,  upon  its  admission 
into  the  Union,  to  do  in  respect  of  Thompson's  crime  what  the 
United  States  could  not  have  done  while  Utah  was  a  territory, 
namely,  to  provide  for  his  trial  by  a  jury  of  eight  persons  ? 

We  are  of  opinion  that  the  state  did  not  acquire  upon  its  admis-^ 
sion  into  the  Union  the  power  to  provide,  in  respect  of  felonies  com- 
mitted within  its  limits  while  it  was  a  territory,  that  they  should  be 


THOMPSON   V.    UTAH.  459 

tried  othenvise  than  by  a  jury  such  as  is  provided  by  the  Constitu- 
tion of  the  United  States.  When  Thompson's  crime  was  com- 
mitted, it  was  his  constitutional  right  to  demand  that  his  Hberty 
should  not  be  taken  from  hun  except  by  the  joint  action  of  the  court 
and  the  unanimous  verdict  of  a  jury  of  twelve  persons.  To  hold 
that  a  state  could  deprive  him  of  his  hberty  by  the  concurrent 
action  of  a  court  and  eight  jurors,  would  recognize  the  power  of  the 
state  not  only  to  do  what  the  United  States  in  respect  of  Thomp- 
son's crime  could  not,  at  any  time,  have  done  by  legislation,  but 
to  take  from  the  accused  a  substantial  right  belonging  to  him  when 
the  offense  was  committed. 

It  is  not  necessary  to  review  the  numerous  cases  in  which  the 
courts  have  determined  whether  particular  statutes  come  within  the 
constitutional  prohibition  of  ex  pod  facto  laws.  It  is  sufficient  now 
to  say  that  a  statute  belongs  to  that  class  which  by  its  necessary 
operation  and  "  in  its  relation  to  the  offense,  or  its  consequences, 
alters  the  situation  of  the  accused  to  his  disadvantage."  United 
States  V.  Hall,  2  Wash.  C.  C.  366;  Kring  v.  Missouri,  107  U.  S. 
221,  228;  Medley,  Petitioner,  134  U.  S.  160,  171.  Of  course,  a 
statute  is  not  of  that  class  unless  it  materially  impairs  the  right  of 
the  accused  to  have  the  question  of  his  guilt  determined  according 
to  the  law  as  it  was  when  the  offense  was  committed.  And,  there- 
fore, it  is  well  settled  that  the  accused  is  not  entitled  of  right  to 
be  tried  in  the  exact  mode,  in  all  respects,  that  may  be  prescribed 
for  the  trial  of  criminal  cases  at  the  time  of  the  commission  of  the 
offense  charged  against  him.  .  .  .  The  difficulty  is  not  so  much 
as  to  the  soundness  of  the  general  rule  that  an  accused  has  no  vested 
right  in  particular  modes  of  procedure,  as  in  determining  whether 
particular  statutes  by  their  operation  take  from  an  accused  any 
right  that  was  regarded,  at  the  time  of  the  adoption  of  the  Con- 
stitution, as  vital  for  the  protection  of  life  and  liberty,  and  which 
he  enjoyed  at  the  time  of  the  commission  of  the  offense  charged 
against  him. 

Now,  Thompson's  crime,  when  conmiitted,  was  punishable  by 
the  Territory  of  Utah  proceeding  in  all  its  legislation  under  the 
sanction  of  and  in  subordination  to  the  authority  of  the  United 
States.  The  court  below  substituted,  as  a  basis  of  judgment  and 
sentence  to  imprisonment  in  the  penitentiary,  the  unanimous 
verdict  of  eight  jurors  in  place  of  a  unanimous  verdict  of  twelve. 
It  cannot  therefore  be  said  that  the  constitution  of  Utah,  when 
applied  to  Thompson's  case,  did  not  deprive  him  of  a  substantial 
right  involved  in  his  liberty,  and  did  not  materially  alter  the  situa- 


460  EX  POST  FACTO  LAWS. 

tion  to  his  disadvantage.  If,  in  respect  to  felonies  committed  in 
Utah  while  it  was  a  territory,  it  was  competent  for  the  state  to 
prescribe  a  jury  of  eight  persons,  it  could  just  as  well  have  pre- 
scribed a  jury  of  four  or  two,  and,  perhaps,  have  dispensed  alto- 
gether with  a  jury,  and  provided  for  a  trial  before  a  single  judge 

In  our  opinion,  the  provision  in  the  constitution  of  Utah  provid- 
ing for  the  trial  in  courts  of  general  jurisdiction  of  criminal  cases, 
not  capital,  by  a  jury  composed  of  eight  persons,  is  ex  post  facto  in 
its  application  to  felonies  committed  before  the  territory  became  a 
state,  because,  in  respect  of  such  crimes,  the  Constitution  of  the 
United  States  gave  the  accused,  at  the  time  of  the  commission  of 
his  offense,  the  right  to  be  tried  by  a  jury  of  twelve  persons,  and 
made  it  impossible  to  deprive  him  of  his  Uberty  except  by  the 
unanimous  verdict  of  such  a  jury. 

The  judgment  is  reversed  and  the  cause  is  remanded  for  further 
proceedings  not  inconsistent  with  this  opinion. 

Brewer  and  Peckham,  J  J.,  dissented. 


THOMPSON  V.   MISSOURI. 
Supreme  Court  of  the  United  States.     1898. 

[171  United  States,  380.]  i 

Error  to  the  Supreme  Court  of  Missouri. 

In  the  St.  Louis  Criminal  Court  Thompson  was  indicted  for 
murder  in  the  first  degree.  The  case  was  tried  twice.  At  the  first 
trial,  over  the  objection  of  the  accused,  certain  letters  written  by 
the  accused  to  his  wife  were  admitted  in  evidence  for  the  purpose 
of  comparing  them  with  the  writing  in  papers  —  a  prescription  for 
strychnine  and  a  threatening  letter  to  the  murdered  man  —  whose 
authorship  was  disputed.  After  conviction,  the  judgment  was 
reversed  by  the  Supreme  Court  of  the  state,  which  held  it  error  to 
admit  the  letters  of  the  accused  to  his  wife  for  purposes  of  compari- 
son (132  Mo.  301).  Subsequently  the  legislature  of  Missouri 
passed  an  act  providing  that  "  comparison  of  a  disputed  writing 
with  any  writing  proved  to  the  satisfaction  of  the  judge  to  be 

1  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


THOMPSON    V.    MISSOURI.  ^61 

genuine  shall  be  permitted  to  be  made  by  witnesses,  and  such 
witings  and  the  evidence  of  witnesses  respecting  the  same  may  be 
submitted  to  the  court  and  jury  as  evidence  of  the  genumeness  or 
otherwise  of  the  writing  in  dispute."  (Laws,  1895,  p.  284.)  At 
the  second  trial,  over  the  objection  of  the  accused,  the  same  letters 
were  admitted,  in  rehance  upon  the  statute.  After  conviction, 
the  Supreme  Court  of  the  state  affirmed  the  judgment  (141  Mo. 

408).  ,  T.  ^  ^ 

C.  F.  Joy  and  M.  C.  Early,  for  plaintiff  m  error;  and  E.  C.  trow, 

contra. 

Harlan,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  contention  of  the  accused  is  that  as  the  letters  to  his  wife 
were  not  at  the  time  of  the  commission  of  the  alleged  offense, 
admissible  in  evidence  for  the  purpose  of  comparing  them  with 
other  writings  charged  to  be  in  his  handwriting,  the  subsequent 
statute  of  Missouri  changing  this  rule  of  evidence  was  ex  posi  facto 
when  apphed  to  his  case. 

It  is  not  to  be  denied  that  the  position  of  the  accused  finds 
apparent    support     in    the    general     language    used    in    some 

opinions.    .   .   .^  -^.u     + 

Applying  the  principles  announced  in  former  cases  —  without 
attaching  undue  weight  to  general  expressions  in  them  that  go 
beyond  the  questions  necessary  to  be  determined  —  we  adjudge 
that  the  statute  of  Missouri  relating  to  the  comparison  of  .vTitmgs 
is  not  ex  post  facto  when  apphed  to  prosecutions  for  crimes  com- 
mitted prior  to  its  passage.  If  persons  excluded,  upon  grounds  of 
public  pohcv,  at  the  time  of  the  commission  of  an  offense,  from 
testifying  as  ^dtnesses  for  or  against  the  accused,  may,  m  virtue 
of  a  statute,  become  competent  to  testify,  we  cannot  perceive  any 
ground  upon  which  to  hold  a  statute  to  be  ex  post  facto  which  does 
nothing  more  than  achnit  evidence  of  a  particular  kind  m  a  criminal 
case  upon  an  issue  of  fact  which  was  not  admissible  under  the  rules 
of  evidence  as  enforced  by  judicial  decisions  at  the  time  the  offense 
was  committed.  The  Missouri  statute,  when  applied  to  this  case, 
did  not  enlarge  the  punishment  to  which  the  accused  was  hable 
when  his  crime  was  committed,  nor  make  any  act  involved  in  his 
offense  criminal  that  was  not  criminal  at  the  time  he  committed 
the  murder  of  which  he  was  found  guilty.     It  did  not  change  the 

1  Here  were  quoted  Calder  ..  BuU,  ante,  p.  425  (1798);  United  States  .. 
HaU,  2  Wash.  C.  C.  366,  373  (1809);  Kring  ..  Missouri,  ante,  P^ 439  (1883), 
Hopi  V.  Utah,  ante,  p.  447  (1884) ;  and  Thompson  v.  Utah,  ante,  p.  457  (1898)  .- 
Ed. 


462  EX    POST    FACTO   LAWS. 

quality  or  degree  of  his  offense.  Nor  can  the  new  rule  introduced 
by  it  be  characterized  as  unreasonable  —  certainly  not  so  unrea- 
sonable as  materially  to  affect  the  substantial  rights  of  one  put  on 
trial  for  crime.  The  statute  did  not  require  "  less  proof,  in  amount 
or  degree,"  than  was  required  at  the  time  of  the  commission  of  the 
crime  charged  upon  him.  It  left  unimpaired  the  right  of  the  jury 
to  determine  the  sufficiency  or  effect  of  the  evidence  declared  to  be 
admissible,  and  did  not  disturb  the  fundamental  rule  that  the  state 
as  a  condition  of  its  right  to  take  the  life  of  an  accused,  must  over- 
come the  presumption  of  his  innocence  and  establish  his  guilt 
beyond  a  reasonable  doubt.  Whether  he  wrote  the  prescription 
for  strychnine,  or  the  threatening  letter  to  the  church  organist,  was 
left  for  the  jury,  and  the  duty  of  the  jury,  in  that  particular,  was 
the  same  after  as  before  the  passage  of  the  statute.  The  statute 
did  nothing  more  than  remove  an  obstacle  arising  out  of  a  rule  of 
evidence  that  withdrew  from  the  consideration  of  the  jury  testi- 
mony which,  in  the  opinion  of  the  legislature,  tended  to  elucidate 
the  ultimate,  essential  fact  to  be  established,  namely,  the  guilt  of 
the  accused.  Nor  did  it  give  the  prosecution  any  right  that  was 
denied  to  the  accused.  It  placed  the  state  and  the  accused  upon 
an  equality;  for  the  rule  established  by  it  gave  to  each  side  the 
right  to  have  disputed  ^VTitings  compared  with  writings  proved  to 
the  satisfaction  of  the  judge  to  be  genuine.  Each  side  was  entitled 
to  go  to  the  jury  upon  the  question  of  the  genuineness  of  the  writ- 
ing upon  which  the  prosecution  relied  to  estabhsh  the  guilt  of  the 
accused.  It  is  well  kno^vn  that  the  adjudged  cases  have  not  been 
in  harmony  touching  the  rule  relating  to  the  comparison  of  hand- 
writings: and  the  object  of  the  legislature,  as  we  may  assume,  was 
to  give  the  jury  all  the  light  that  could  be  thrown  upon  an  issue  of 
that  character.  AVe  cannot  adjudge  that  the  accused  had  any 
vested  right  in  the  rule  of  evidence  which  obtained  prior  to  the 
passage  of  the  Missouri  statute,  nor  that  the  rule  established  by 
that  statute  entrenched  upon  any  of  the  essential  rights  belonging 
to  one  put  on  trial  for  a  public  offense. 

Of  course,  we  are  not  to  be  understood  as  holding  that  there  may 
not  be  such  a  statutory  alteration  of  the  fundamental  rules  in 
criminal  trials  as  might  bring  the  statute  in  conflict  with  the  ex 
post  facto  clause  of  the  Constitution.  If,  for  instance,  the  statute 
had  taken  from  the  jury  the  right  to  determine  the  suflftciency  or 
effect  of  the  evidence  which  it  made  admissible,  a  different  ques- 
tion would  have  been  presented.  We  mean  now  only  to  adjudge 
that  the  statute  is  to  be  regarded  as  one  merely  regulating  proced- 


ROONEY  V.    NORTH  DAKOTA.  463 

ure  and  may  be  applied  to  crimes  committed  prior  to  its  passage 
without  impairing  the  substantial  guarantees  of  life  and  liberty 
that  are  secured  to  an  accused  by  the  supreme  law  of  the  land. 
The  judgment  of  the  Supreme  Court  of  Missouri  is 

Affirmed. 


ROONEY  V.   NORTH   DAKOTA. 
Supreme  Court  of  the  United  States.     1905. 

[196  United  Slates,  319.]  i 

Error  to  the  Supreme  Court  of  North  Dakota. 

In  the  District  Court  of  Cass  County,  North  Dakota,  Rooney 
was  found  guilty  of  murder  in  the  first  degree.  After  verdict,  but 
before  sentence,  the  statutes  as  to  punishment  for  murder  in  the 
first  degree  (Rev.  Codes,  1899,  §§  7068,  8305,  8320-8322)  were 
amended  in  certain  details  (Laws,  1903,  c.  99,  p.  119).  Death  or 
imprisonment  for  life  continued  to  be  the  punishment;  but  there 
was  a  difference  in  these  particulars:  (1)  By  the  later  law,  close 
confinement  in  the  penitentiary  for  not  less  than  six  months  and 
not  more  than  nine  months,  after  judgment  and  before  execution, 
was  substituted  for  confinement  in  the  county  jail  for  not  less  than 
three  months  nor  more  than  six  months,  after  judgment  and  before 
execution;  and  (2)  by  the  later  law,  hanging,  within  an  inclosure 
at  the  penitentiary,  by  the  warden  or  his  deputy,  was  substituted 
for  hanging  by  the  sheriff  within  the  yard  of  the  county  jail.  The 
accused  was  sentenced  to  death  in  accordance  with  the  new  law, 
the  period  of  his  close  confinement  in  the  penitentiary  being  fixed 
at  seven  months.  The  judgment  was  affirmed  by  the  Supreme 
Court  of  the  state;  and  the  sole  question  raised  under  this  writ 
of  error  was  whether  the  new  statute  was  ex  'post  facto  and  uncon- 
stitutional in  apphcation  to  this  case. 

B.  F.  Spalding  and  Seth  Newman,  for  plaintiff  in  error;    and 
E.  H.  Smith  and  W.  H.  Barnett,  contra. 

Harlan,  J.,  .  .  .  dehvered  the  opinion  of  the  court.  .  .  . 

The  statute  of  1903  is  not  repugnant  to  the  constitutional  pro- 
vision declaring  that  no  state  shall  pass  an  ex  post  facto  law.      It 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


464  EX  POST  FACTO  LAWS. 

did  not  create  a  new  offense  nor  aggravate  or  increase  the  enormity 
of  the  crime  for  the  commission  of  which  the  accused  was  convicted, 
nor  require  the  infliction  upon  the  accused  of  any  greater  or  more 
severe  punishment  than  was  prescribed  by  law  at  the  time  of  the 
commission  of  the  offense.  The  changes,  looked  at  in  the  liglit  of 
reason  and  common  sense  and  applied  to  the  present  case,  are  to  be 
taken  as  favorable  rather  than  as  unfavorable  to  him.  It  may  be 
sometimes  difficult  to  say  whether  particular  changes  in  the  law 
are  or  are  not  in  mitigation  of  the  punishment  for  crimes  pre\aously 
committed.  But  it  must  be  taken  that  there  is  such  mitigation 
when  by  the  later  law  there  is  an  enlargement  of  the  period  of 
confinement  prior  to  the  actual  execution  of  the  criminal  by  hang- 
ing. The  giving,  by  the  later  statute,  of  three  months'  additional 
time  to  live,  after  the  rendition  of  judgment,  was  clearly  to  his 
advantage,  for  the  court  must  assume  that  every  rational  person 
desires  to  five  as  long  as  he  may.  If  the  shortening  of  the  time  of 
confinement,  whether  in  the  county  jail  or  in  the  penitentiary 
before  execution,  would  have  increased,  as  undoubtedly  it  would 
have  increased,  the  punishment  to  the  disadvantage  of  a  criminal 
sentenced  to  be  hung,  the  enlargement  of  such  time  must  be  deemed 
a  change  for  his  benefit.  So  that  a  statute  which  mitigates  the 
rigor  of  the  law  in  force  at  the  time  a  crime  was  committed  cannot 
be  regarded  as  ex  -post  facto  with  reference  to  that  crime.  Calder  v. 
Bull,  3  Dall.  386,  391,  Chase,  J.;  Story's  Const.  §  1345;  Cooley's 
Const.  Lim.  *267;  Commonwealth  v.  Gardner,  11  Gray,  438,  443; 
1  Bishop's  Crim.  Law,  §  280.  Besides,  the  extension  of  the  time  to 
five,  given  by  the  later  law,  increased  the  opportunity  of  the 
accused  to  obtain  a  pardon  or  commutation  from  the  Governor  of 
the  state  before  his  execution. 

Nor  was  the  punishment,  in  any  substantial  sense,  increased  or 
made  more  severe  by  substituting  close  confinement  in  the  peni- 
tentiary prior  to  execution  for  confinement  in  the  county  jail. 
It  is  contended  that  "  close  confinement  "  means  "  solitary  con- 
finement," and  Medley's  Case,  134  U.  S.  160,  is  cited  in  support 
of  the  contention  that  the  new  law  increased  the  punishment  to  the 
disadvantage  of  the  accused.  We  do  not  think  that  the  two 
phrases  import  the  same  kind  of  punishment.  Although  solitary 
confinement  may  involve  close  confinement,  a  criminal  could  be 
kept  in  close  confinement  without  being  subjected  to  solitary 
confinement.  It  cannot  be  supposed  that  any  criminal  would  be 
subjected  to  soUtary  confinement  when  the  mandate  of  the  law  was 
simply  to  keep  him  in  close  confinement. 


ROSS    V.    OREGON. 


465 


Again,  it  is  said  that  the  law  in  force  when  the  crime  was  com- 
mitted only  required  confinement,  whereas  the  later  statute 
required  close  confinement.  But  this  difference  of  phraseology  is 
not  material.  "  Confinement  "  and  "  close  confinement  "  equally 
mean  such  custody,  and  only  such  custody,  as  will  safely  secure 
the  production  of  the  body  of  the  prisoner  on  the  day  appointed 
for  his  execution. 

The  objection  that  the  later  law  required  the  execution  of  the 
sentence  of  death  to  take  place  within  the  hmits  of  the  penitentiary 
rather  than  in  the  county  jail,  as  provided  in  the  previous  statute, 
is  without  merit.  However  material  the  place  of  confinement 
may  be  in  case  of  some  crimes  not  involving  life,  the  place  of 
execution,  when  the  punishment  is  death,  within  the  limits  of  the 
state,  is  of  no  practical  consequence  to  the  criminal.  On  such  a 
matter  he  is  not  entitled  to  be  heard. 

The  views  we  have  expressed  are  in  accord  with  those  an- 
nounced by  the  Supreme  Court  of  North  Dakota.  State  v. 
Rooney,  12  N.  Dak.  144,  152. 

We  are  of  opinion  that  the  law  of  1903  did  not  alter  the  situation 
to  the  material  disadvantage  of  the  criminal,  and,  therefore,  was 
not  ex  post  facto  when  appUed  to  his  case  in  the  particulars  men- 
tioned. Judgment  affirmed. 


ROSS  V.  OREGON. 
Supreme  Court  of  the  United  States.     1913. 

[227  United  States,  150.]  ^ 

Error  to  the  Supreme  Court  of  Oregon. 

This  was  a  criminal  prosecution  instituted  in  the  Circuit  Court 
for  Marion  County,  Oregon,  by  an  information  charging  Ross  and 
others,  being  officers  and  cUrectors  of  a  bank,  with  having  con- 
verted to  their  own  use  educational  funds  belonging  to  the  state. 
The  statute  provided  that  "  if  any  person  shall  receive  any  money 
whatever  for  this  state  ...  and  shall  in  any  way  convert  to  his 
own  use  any  portion  thereof  .  .  .  such  person  shall  be  deemed 
guilty  of  larceny."     (Belhnger  &  Cotton's  Codes,  §  1807.)     By  an 

1  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


466  EX   POST   FACTO   LAWS. 

act  taking  effect  May  26,  1907,  the  legislature  provided  for  the  des- 
ignation of  state  depositories  for  the  purpose  of  receiving  on  deposit 
state  funds  —  except  educational  funds  —  and  paying  interest, 
and  for  the  designation  of  an  active  depository  for  the  collection 
and  prompt  payment  of  drafts,  checks,  certificates  of  deposit,  and 
coupons  for  the  state  treasurer,  com})ensation  being  paid  by  such 
active  depository  (Laws,  1907,  c.  135,  p.  248).  In  June,  1907, 
the  bank  in  question  became  an  active  depository,  and  an  account 
was  opened  in  the  name  of  the  state  treasurer,  with  the  acKled 
designation  "  educational."  The  deposits  were  checks  and  drafts 
belonging  to  the  educational  funds.  The  bank  failed,  and  at  the 
time  of  the  failure  had  on  hand  less  cash  than  the  amount  of  this 
account.  The  officers  and  directors  had  not  appropriated  any  of 
the  money  to  their  personal  use;  but,  knowing  that  it  belonged  to 
the  state's  educational  fund  and  was  received  by  the  bank  as  an 
active  depository,  they  had  permitted  it  to  be  commingled  with 
other  deposits  and  funds  and  had  sanctioned  its  use  in  paying  lial)il- 
ities  of  the  bank.  Upon  a  separate  trial,  Ross  was  convicted  and 
sentenced  to  fine  and  imprisonment.  An  appeal  to  the  Supreme 
Court  of  the  state  resulted  in  the  elimination  of  the  fine  and  in  the 
affirmance  of  the  judgment  in  other  respects  (55  Oregon,  450). 

W.  D.  Guthrie  and  W.  McCamant,  for  plaintiff  in  error;  and 
A.  M.  Crawford,  Attorney  General  of  Oregon,  and  others,  contra. 

Van  Devanter,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Before  the  passage  of  the  depository  act  the  Supreme  Court  of 
the  state  had  occasion  to  consider  and  determine,  in  Baker  v. 
Wilhams  Banking  Co.,  42  Oregon,  213,  222-225,  whether,  in  view 
of  §  1807  of  BeUinger  &  Cotton's  Codes  (then  §  1772,  Hill's  Ann. 
Laws),  the  state  treasurer  lawfully  could  make  a  general  deposit 
in  a  bank  of  money  of  the  state  belonging  to  its  educational  funds, 
and  it  was  held  that  he  could.  .  .  . 

After  that  decision  and  before  the  transactions  here  in  question 
the  depository  act  was  passed  and  put  in  force,  but  its  construc- 
tion and  operation  were  not  determined  by  the  Supreme  Court  of 
the  state  until  it  passed  upon  the  case  at  bar.  It  was  then  held  .  . . 
that  the  act  operated,  and  the  legislature  intended,  to  take  the 
educational  funds  out  of  the  custom  or  rights  of  the  treasurer  to 
make  general  deposits  which  was  recognized  in  Baker  v.  Williams 
Banking  Co.,  supra.  .  .  . 

It  will  be  perceived  that  but  for  the  depository  act,  as  so  con- 
strued, the  deposit  would  have  been  a  general  one,  merely  creating 
the  relation  of  debtor  and  creditor  between  the  bank  and  the  state, 


ROSS    V.    OREGON.  467 

and  the  commingling  and  use  of  the  money  in  the  manner  shown 
would  not  have  been  a  crime  under  §  1807. 

The  record  shows  that  the  plaintiff  in  error  contended  in  the 
Supreme  Court  of  the  state  that  the  depository  act  was  not  rea- 
sonably susceptible  of  the  construction  ultimately  adopted,  and 
that  to  put  such  a  construction  upon  it  would  be  violative  of  the 
prohibition  in  the  Constitution  of  the  United  States  against  ex 
post  facto  state  laws.  Both  phases  of  the  contention  were  denied, 
the  second  necessarily  failing  ^\^th  the  first,  and  the  plaintiff  in 
error  now  assigns  error  upon  that  holding  and  complains  that  it 
deprived  him  of  a  right  secured  by  the  Constitution. 

Bearing  in  mind  what  has  been  said,  and  especially  that  the 
depository  act  and  §  1807  were  both  in  force  at  the  time  of  the 
alleged  offense,  it  will  be  perceived  that  the  real  complaint  which 
we  are  asked  to  consider  is,  not  that  the  Supreme  Court  of  the 
state  in  any  wise  rested  its  judgment  upon  a  statute  passed  after 
the  time  of  the  alleged  offense,  but  only  that  it  misconstrued  a 
pre-existing  statute  to  the  chsaflvantage  of  the  plaintiff  in  error  and 
that  such  a  decision  is  an  ex  post  facto  law  within  the  meaning  of 
Art.  I.,  §  10,  of  the  Constitution,  which  declares:  "  No  state  .  .  . 
shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing 
the  obhgation  of  contracts." 

But  that  provision  of  the  Constitution,  according  to  the  natural 
import  of  its  terms,  is  a  restraint  upon  legislative  power  and  con- 
cerns the  making  of  laws,  not  their  construction  by  the  courts.  It 
has  been  so  regarded  from  the  beginning.  .  .  .  Calder  v.  Bull,  3 
Dall.  386,  .  .  .  Fletcher  v.  Peck,  6  Cranch,  87,  138,  .  .  .  Com- 
mercial Bank  v.  Buckingham's  Executors,  5  How.  317,  .  .  .  New 
Orleans  Water  Works  Co.  v.  Louisiana  Sugar  Refining  Co.,  125 
U.  S.  18,  30,  .  .  .  BrouTi  v.  Smart,  14.5  U.  S.  454,  458,  .  .  . 
Central  Land  Co.  v.  Laidley,  159  U.  S.  103,  109;  Bacon  v.  Texas, 
163  U.  S.  207,  220;  Hanford  v.  Davies,  Id.  273,  278;  Turner  v. 
Wilkes  County,  173  U.  S.  461;  Cross  Lake  Shooting  &  Fishing 
Club  V.  Louisiana,  224  U.  S.  632,  638. 

But  whilst  thus  uniformly  holding  that  the  provision  is  directed 
against  legislative,  but  not  judicial,  acts,  this  court  with  like  uni- 
formity has  regarded  it  as  reaching  every  form  in  which  the 
legislative  power  of  a  state  is  exerted,  whether  it  be  a  constitution, 
a  constitutional  amendment,  an  enactment  of  the  legislature,  a 
by-law  or  ordinance  of  a  municipal  corporation,  or  a  regulation  or 
order  of  some  other  instrumentality  of  the  state  exercising  dele- 
gated legislative  authority.      New  Orleans  Water  Works  Co.  v. 


468  EX  POST  FACTO  LAWS. 

Louisiana  Sugar  Refining  Co.,  supra;  St.  Paul  Gas  Light  Co.  v. 
St.  Paul,  181  U.  S.  142,  148;  Davis  &  Farnum  Manufacturing 
Co.  V.  Los  Angeles,  189  U.  S.  207,  216;  Grand  Trunk  Hallway  Co. 
V.  Railroad  Commission  of  Indiana,  221  U.  S.  400,  403.  Of  course, 
the  ruhng  here  in  question  was  by  an  instrumentality  of  the  state, 
but  as  its  purpose  wa3,  not  to  prescribe  a  new  law  for  the  future, 
but  only  to  apply  to  a  completed  transaction  laws  which  were  in 
force  at  the  time,  it  is  quite  plain  that  the  ruUng  was  a  judicial  act 
and  not  an  exercise  of  legislative  authority.  As  was  said  in  Prentis 
V.  Atlantic  Coast  Line  Co.,  211  U.  S.  210,  226:  "  A  judicial  inquiry 
investigates,  declares  and  enforces  liabilities  as  they  stand  on  pres- 
ent or  past  facts  and  under  laws  supposed  already  to  exist.  That 
is  its  purpose  and  end.  Legislation,  on  the  other  hand,  looks  to 
the  future  and  changes  existing  conditions  by  making  a  new  rule 
to  be  applied  thereafter  to  all  or  some  part  of  those  subject  to  its 
power." 

The  plaintiff  in  error  cities  the  cases  of  Kring  v.  Missouri,  107 
U.  S.  221;  Muhlker  v.  New  York  &  Harlem  Railroad  Co.,  197 
U.  S.  544;  Louisiana  v.  Pilsbury,  105  U.  S.  278;  Gelpcke  v.  Dubu- 
que, 1  Wall.  175,  and  Butz  v.  City  of  Muscatine,  8  Wall.  575,  as 
holding  that  a  judicial  decision  may  be  a  law  in  the  sense  of  the 
constitutional  provision  which  he  invokes.  But  none  of  those 
cases,  when  rightly  considered,  sustains  that  position.  The  first 
was  a  criminal  case  in  which  a  provision  in  a  new  constitution  was 
held  to  be  an  ex  post  facto  law  as  to  an  offense  theretofore  committed; 
the  second  presented  the  question  whether  a  state  statute  of  1892 
impaired  contractual  obligations  created  by  deeds  of  a  much 
earlier  date;  the  third  and  fourth  were  explained  in  Central  Land 
Co.  V.  Laidley,  159  U.  S.  103,  111-112;  Bacon  v.  Texas,  163  U.  S. 
207,  221-223,  and  Turner  v.  Wilkes  County,  supra,  and  were  there 
shown  not  to  be  in  conflict  with  other  cases  on  the  subject,  and  the 
fifth  is  in  no  wise  distinguishable  from  the  fourth. 

We  conclude  that  no  federal  right  was  involved  in  the  ruUng 
respecting  the  construction  of  the  depository  act.  .  .  . 

As  the  record  presents  no  federal  question,  we  are  without 
jurisdiction  to  review  the  judgment,  and  therefore  cannot  enter 
into  the  merits  of  the  questions  that  were  presented  and  deter- 
mined in  the  state  court. 

Writ  of  error  dismissed. 


CHAPTER   III. 

SOME  TOPICS  IX  THE  FIRST  TEX  AMEXDMENTS: 
THE  FEDERAL  BILL  OF  RIGHTS.^ 


SECTION   I. 

Questions  under  State  Law. 

BARROX   V.   BALTI:M0RE. 
Supreme  Court  of  the  United  States.     1833. 

[7  Peters,  243.] 

On  a  writ  of  error  to  the  Court  of  Appeals  for  the  Western  Shore 
of  the  State  of  AIar3-Iand. 

This  case  was  instituted  by  the  plaintiff  in  error  against  the  city 
of  Baltimore,  under  its  corporate  title  of  "  The  Mayor  and  City 
Council  of  Baltimore,"  to  recover  damages  for  injuries  to  the 
wharf -property  of  the  plaintiff,  arising  from  the  acts  of  the  cor- 
poration. Craig  and  Barron,  of  whom  the  plaintiff  is  survivor, 
were  owTiers  of  an  extensive  and  highly  productive  wharf  in  the 
eastern  section  of  Baltimore,  enjoying,  at  the  period  of  their  pur- 
chase of  it,  the  deepest  water  in  the  harbor. 

The  city,  in  the  asserted  exercise  of  its  corporate  authority  over 
the  harbor,  the  paving  of  streets,  and  regulating  grades  for  paving, 
and  over  the  health  of  Baltimore,  directed  from  their  accustomed 
and  natural  course,  certain  streams  of  water  which  flow  from  the 
range  of  hills  bordering  the  city,  and  diverted  them,  partly  by 
adopting  new  grades  of  streets,  and  partly'by  the  necessary  results 
of  paving,  and  parth'  by  mounds,  embankments  and  other  artificial 
means,  purposely  adapted  to  bend  the  course  of  the  water  to  the 
wharf  in  question.  These  streams  becoming  very  full  and  violent 
in  rains,  carried  down  with  them  from  the  hills  and  the  soil  over 
which  they  ran,  large  masses  of  sand  and  earth,  which  they  de- 
posited along,  and  widely  in  front  of  the  wharf  of  the  plaintiff. 
The  alleged  consequence  was,  that  the  water  was  rendered  so 
shallow  that  it  ceased  to  be  useful  for  vessels  of  any  important 
burthen,  lost  its  income,  and  became  of  little  or  no  value  as  a 
wharf. 

This  injury  was  asserted  to  have  been  inflicted  by  a  series  of 
ordinances  of  the  corporation,  between  the  years  1815  and  1821; 

^  Cases  on  Due  Process  of  Law  will  be  found  in  Book  III.  —  Ed. 

469 


470  SOME   TOPICS    IN   THE    FIRST   TEN   AMENDMENTS. 

and  that  the  evil  was  progressive;  and  it  was  active  and  increasing 
even  at  the  institution  of  this  suit  in  1822. 

At  the  trial  of  the  cause  in  Baltimore  county  court,  the  plaintiff 
gave  evidence  tending  to  prove  the  original  and  natural  course  of 
the  streams,  the  various  works  of  the  corporation  from  time  to 
time  to  turn  them  in  the  direction  of  this  wharf,  and  the  ruinous 
consequences  of  these  measures  to  the  interests  of  the  plaintiff. 
It  was  not  asserted  by  the  defendants  that  any  compensation  for 
the  injury  was  ever  made  or  proffered;  but  they  justified  under 
the  authority  they  deduced  from  the  charter  of  the  city,  granted 
by  the  legislature  of  Maryland,  and  under  several  acts  of  the 
legislature  conferring  powers  on  the  corporation  in  regard  to  the 
grading  and  paving  of  streets,  the  regulation  of  the  harbor  and  its 
waters,  and  to  the  health  of  the  city. 

They  also  denied  that  the  plaintiff  had  shown  any  cause  of  action 
in  the  declaration,  asserting  that  the  injury  complained  of  was  a 
matter  of  public  nuisance,  and  not  of  special  or  individual  grievance 
in  the  eye  of  the  law.  This  latter  ground  was  taken  in  exception, 
and  was  also  urged  as  a  reason  for  a  motion  in  arrest  of  judgment. 
On  all  points,  the  decision  of  Baltimore  County  Court  was  against 
the  defendants,  and  a  verdict  for  four  thousand  five  hundred 
dollars  was  rendered  for  the  plaintiff.  An  appeal  was  taken  to  the 
Court  of  Appeals,  which  reversed  the  judgment  of  Baltimore 
County  Court,  and  did  not  remand  the  case  to  that  court  for  a 
further  trial.  From  this  judgment  the  defendant  in  the  Court  of 
Appeals,  prosecuted  a  writ  of  error  to  this  court. 

Mayer,  for  plaintiff  in  error;  and  Taneij  and  Scott,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

The  judgment  brought  up  by  this  A\Tit  of  error  having  been 
rendered  by  the  court  of  a  state,  this  tribunal  can  exercise  no 
jurischction  over  it,  unless  it  be  shown  to  come  within  the  pro- 
visions of  the  twenty-fifth  section  of  the  judicial  act. 

The  plaintiff  in  error  contends  that  it  comes  within  that  clause 
in  the  Fifth  Amendment  to  the  Constitution,  which  inhibits  the 
taking  of  private  property  for  public  use,  without  just  compensa- 
tion. He  insists  that  this  amendment,  being  in  favor  of  the  liberty 
of  the  citizen,  ought  to  be  so  construed  as  to  restrain  the  legislative 
power  of  a  state,  as  well  as  that  of  the  United  States.  If  this 
proposition  be  untrue,  the  court  can  take  no  jurisdiction  of  the 

cause. 

The  question  thus  presented  is,  we  think,  of  great  importance, 
but  not  of  much  difficulty. 


BARRON    V.    BALTIMORE. 


471 


The  Constitution  was  ordained  and  established  by  the  people 
of  the  United  States  for  themselves,  for  their  own  government, 
and  not  for  the  government  of  the  individual  states.  Each  state 
estabhshed  a  constitution  for  itself,  and,  in  that  constitution, 
provided  such  limitations  and  restrictions  on  the  powers  of  its 
particular  government  as  its  judgment  dictated.  The  people  of 
the  United  States  framed  such  a  government  for  the  United  States 
as  they  supposed  best  adapted  to  their  situation,  and  best  cal- 
culated to  promote  their  interests.  The  powers  they  conferred 
on  this  government  were  to  be  exercised  by  itself;  and  the  hmita- 
tions  on  power,  if  expressed  in  general  terms,  are  naturally,  and, 
we  think,  necessarily  applicable  to  the  government  created  by  the 
instrument.  They  are  limitations  of  the  power  granted  in  the 
instrument  itself;  not  of  distinct  governments,  framed  by  different 
persons  and  for  different  purposes. 

If  these  propositions  be  correct,  the  Fifth  Amendment  must 
be  understood  as  restraining  the  power  of  the  general  government, 
not  as  applicable  to  the  states.  In  their  several  constitutions  they 
have  imposed  such  restrictions  on  their  respective  governments 
as  their  own  wisdom  suggested;  such  as  they  deemed  most  proper 
for  themselves.  It  is  a  subject  on  which  they  judge  exclusively, 
and  with  which  others  interfere  no  farther  than  they  are  supposed 
to  have  a  common  interest. 

The  counsel  for  the  plaintiff  in  error  insists  that  the  Constitution 
was  intended  to  secure  the  people  of  the  several  states  against  the 
undue  exercise  of  power  by  their  respective  state  governments; 
as  well  as  against  that  which  might  be  attempted  by  their  general 
government.  In  support  of  this  argument  he  rehes  on  the  inhibi- 
tions contained  in  the  tenth  section  of  the  first  article. 

We  think  that  section  affords  a  strong  if  not  a  conclusive  argu- 
ment in  support  of  the  opinion  already  indicated  by  the  court. 

The  preceding  section  contains  restrictions  which  are  obviously 
intended  for  the  exclusive  purpose  of  restraining  the  exercise  of 
power  by  the  departments  of  the  general  government.  Some  of 
them  use  language  appUcable  only  to  Congress:  others  are  expressed 
in  general  terms.  The  third  clause,  for  example,  declares  that 
"  no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed."  No 
language  can  be  more  general;  yet  the  demonstration  is  complete 
that  it  applies  solely  to  the  government  ot  the  United  States. 
In  addition  to  the  general  arguments  furnished  by  the  instrument 
itself,  some  of  which  have  been  already  suggested,  the  succeeding 
section,  the  avowed  purpose  of  which  is  to  restrain  state  legislation, 


472  SOME    TOPICS   IN   THE    FIRST   TEN   AMENDMENTS. 

contains  in  terms  the  very  prohibition.  It  declares  that  "  no 
state  shall  pass  any  bill  of  attainder  or  ex  post  facto  law."  This 
provision,  then,  of  the  ninth  section,  however  comprehensive  its 
language,  contains  no  restriction  on  state  legislation. 

The  ninth  section  having  enumerated,  in  the  nature  of  a  bill  of 
rights,  the  limitations  intended  to  be  imposed  on  the  powers  of  the 
general  government,  the  tenth  proceeds  to  enumerate  those  which 
were  to  operate  on  the  state  legislatures.  These  restrictions  are 
brought  together  in  the  same  section,  and  are  by  express  words 
applied  to  the  states.  "  No  state  shall  enter  into  any  treaty,"  &c. 
Perceii-ing  that  in  a  constitution  framed  by  the  people  of  the  United 
States  for  the  government  of  all,  no  hmitation  of  the  action  of 
government  on  the  people  would  apply  to  the  state  government, 
unless  expressed  in  terms;  the  restrictions  contained  in  the  tenth 
section  are  in  direct  words  so  applied  to  the  states. 

It  is  worthy  of  remark,  too,  that  these  inhibitions  generally 
restrain  state  legislation  on  subjects  entrusted  to  the  general 
government,  or  in  which  the  people  of  all  the  states  feel  an  interest. 

A  state  is  forbidden  to  enter  into  any  treaty,  alliance  or  con- 
federation. If  these  compacts  are  with  foreign  nations,  they 
interfere  with  the  treat}'  making  power  which  is  conferred  entirely 
on  the  general  government;  if  with  each  other,  for  political  pur- 
poses, they  can  scarcely  fail  to  interfere  ^\^th  the  general  purpose 
and  intent  of  the  Constitution.  To  grant  letters  of  marque  and 
reprisal,  would  lead  directly  to  war;  the  power  of  declaring  which 
is  expressly  given  to  Congress.  To  coin  money  is  also  the  exercise 
of  a  power  conferred  on  Congress.  It  would  be  tedious  to  recapitu- 
late the  several  limitations  on  the  powers  of  the  states  which  are 
contained  in  this  section.  They  will  be  found,  generally,  to  restrain 
state  legislation  on  subjects  entrusted  to  the  government  of  the 
union,  in  which  the  citizens  of  all  the  states  are  interested.  In 
these  alone  were  the  whole  people  concerned.  The  question  of 
their  application  to  states  is  not  left  to  construction.  It  is  averred 
in  positive  words. 

If  the  original  Constitution,  in  the  ninth  and  tenth  sections  of  the 
first  article,  draws  this  plain  and  marked  line  of  discrimination 
between  the  limitations  it  imposes  on  the  powers  of  the  general 
government,  and  on  those  of  the  states;  if  in  every  inhibition 
intended  to  act  on  state  power,  words  are  employed  which  directly 
express  that  intent;  some  strong  reason  must  be  assigned  for 
departing  from  this  safe  and  judicious  course  in  framing  the 
amendments,  before  that  departure  can  be  assumed. 


BARRON    V.    BALTIMORE.  473 

We  search  in  vain  for  that  reason. 

Had  the  people  of  the  several  states,  or  any  of  them,  required 
changes  in  their  constitutions;  had  they  required  adcht.onal  safe- 
guards to  hberty  from  the  apprehended  encroachments  of  their 
particular  govermnents:  the  remedy  was  in  their  own  hands,  and 
would  have  been  apphed  by  themselves.      A  convention  would 
have  been  assembled  by  the  discontented  state   and  the  reqmred 
improvements  would  have  been  made  by  itself.     The  unwieldy 
and  cumbrous  machinery  of  procuring  a  recommendation  from 
two-thirds  of  Congress,  and  the  assent  of  three-fourths  of  their 
sister  states,  could  never  have  occurred  to  any  human  bemg  as  a 
mode  of  doing  that  which  might  be  effected  by  the  state  itself. 
Had  the  framers  of  these  amendments  intended  them  to  be  limita- 
tions on  the  powers  of  the  state  govermnents,  they  would  have 
imitated  the  framers  of  the  original  Constitution,  and  have  ex- 
pressed that  intention.    Had  Congress  engaged  in  the  extraorchnary 
occupation  of  impro^dng  the  constitutions  of  the  several  states  by 
afforcUng  the  people  adcUtional  protection  from  the  exercise  of 
power  by  their  own  govermnents  in  matters  which  concerned 
themselves  alone,  they  would  have  declared  this  purpose  in  plain 

and  intelligible  language.  .    r  .u    u-  +        ^f  +v.o 

But  it  is  universally  understood,  it  is  a  part  of  the  history  of  the 
day  that  the  great  revolution  which  established  the  Constitution 
of  the  United  States,  was  not  effected  ^vithout  immense  opposition 
Serious  fears  were  extensively  entertained  that  those  powers  which 
the  patriot  statesmen,  who  then  watched  over  the  interests  of  om- 
country,  deemed  essential  to  union,  and  to  the  attainment  of  those 
invaluable  objects  for  which  union  was  sought,  might  be  exercised 
in  a  mamier  dangerous  to  liberty.     In  almost  every  convention  by 
which  the  Constitution  was  adopted,  amenchnents  to  guard  against 
the  abuse  of  power  were  recommended.      These  amendments 
demanded  security  against  the  apprehended  encroachments  of  the 
general  government  -  not  against  those  of  the  local  govermnents. 
In  compliance  with  a  sentiment  thus  generally  expressed,  to 
quiet  fears  thus  extensively  entertained,  amendments  were  pro- 
posed by  the  required  majority  in  Congress,  and  adopted  by  the 
states      These  amendments  contain  no  expression  indicating  an 
intention  to  apply  them  to  the  state  governments.      This  court 

cannot  so  apply  them.  ,     r^-rxi    *         j        + 

We  are  of  opinion  that  the  provision  in  the  Fifth  Amendment 

to  the  Constitution,  declaring  that  private  property  shall  not  be 

taken  for  pubhc  use  without  just  compensation,  is  intended  solely 


474  SOME    TOPICS   IN   THE    FIRST   TEN   AMENDMENTS. 

as  a  limitation  on  the  exercise  of  power  by  the  government  of  the 
United  States,  and  is  not  appheable  to  the  legislation  of  the  states. 
We  are  therefore  of  opinion  that  there  is  no  repugnancy  between 
the  several  acts  of  the  general  assembly  of  Maryland,  given  in 
evidence  by  the  defendants  at  the  trial  of  this  cause,  in  the  court 
of  that  state,  and  the  Constitution  of  the  United  States.  This 
court,  therefore,  has  no  jurisdiction  of  the  cause;  and  it  is  dis- 
missed. 


MOORE,  Executor  of  Eels,  v.  ILLINOIS. 

Supreme  Court  of  the  United  States.     1852. 

[14  Howard,  13.] 

This  case  was  brought  up  from  the  Supreme  Court  of  the  State 
of  Illinois,  by  a  writ  of  error  issued  under  the  25th  section  of  the 
Judiciary  Act. 

The  section  of  the  law  of  Illinois,  under  which  Eels  was  indicted 
in  1842,  and  the  facts  in  the  case  are  set  forth  in  the  opinion  of  the 
court,  and  need  not  be  repeated.  The  court  before  which  he  was 
tried,  fined  him  four  hundred  dollars,  and  the  Supreme  Court  of 
Illinois  affirmed  the  judgment.  The  case  is  reported  in  4  Scam- 
mon's  Rep.  498. 

Chase  and  Dixon,  for  plaintiff  in  error;  and  Shields  and  Mc- 
Dougall,  contra. 

Grier,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  indicted  and  convicted  under  the 
criminal  code  of  Ilhnois  for  "  harboring  and  secreting  a  negro 
slave."  The  record  was  removed  by  writ  of  error  to  the  Supreme 
Court  of  that  state.  .  .  . 

It  has  been  urged  that  this  act  is  void,  as  it  subjects  the  delin- 
quent to  a  double  punishment  for  a  single  offense.  But  we  think 
that  neither  the  fact  assumed  in  this  proposition,  nor  the  inference 
from  it,  will  be  found  to  be  correct.  The  offenses  for  which  the 
fourth  section  of  the  act  of  12th  February,  1793,  subjects  the 
delinquent  to  a  fine  of  five  hundred  dollars,  are  different  in  many 
respects  from  those  defined  by  the  statute  of  IlKnois.  The  act  of 
Congress  contemplates  recapture  and  reclamation,  and  punishes 


MOORE    V.    ILLINOIS.  475 

those  who  interfere  \vith  the  master  in  the  exercise  of  this  right  — 
first  by  obstructing  or  hindering  the  claimant  in  his  endeavors  to 
seize  and  arrest  the  fugitive;  secondly,  by  rescuing  the  fugitive 
when  arrested;  and,  thircUy,  by  harboring  or  concealing  him  after 

notice.  ,  ,•        e 

But  the  act  of  Ilhnois,  having  for  its  object  the  prevention  ot 
the  immigration  of  such  persons,  punishes  the  harboring  or  secret- 
ing negro  slaves,  whether  domestic  or  foreign,  and  without  regard 
to  the  master's  desire  either  to  reclaim  or  abandon  them.     The 
fine  imposed  is  not  given  to  the  master,  as  the  party  injured,  but 
to  the  state,  as  a  penalty  for  disobedience  to  its  laws.     And  if  the 
fine  inflicted  by  the  act  of  Congress  had  been  made  recoverable  by 
indictment,  the  offense,  as  stated  in  any  one  of  the  counts  of  the 
bill  before  us,  would  not  have  supported  such  an  indictment. 
Even  the  last  count,  which  charges  the  plaintiff  in  error  wth 
"  unlau^ully  preventing  C.  D.,  the  lawful  o^^^ler,  from  retaking 
the  negro  slave,"  as  it  does  not  allege  notice,  does  not  describe  an 
offense  punishable  by  the  act  of  Congress. 

But  admitting  that  the  plaintiff  in  error  may  be  hable  to  an 
action  under  the  act  of  Congress,  for  the  same  acts  of  harboring 
and  preventing  the  owner  from  retaking  his  slave,  it  does  not  fol- 
low that  he  would  be  twice  punished  for  the  same  offense.     An 
offense  in  its  legal  signification,  means  the  transgression  of  a  law. 
A  man  may  be  compelled  to  make  reparation  in  damages  to  the 
injured  party,  and  be  liable  also  to  punishment  for  a  breach  of  the 
pubUc  peace,  in  consequence  of  the  same  act;  and  may  be  said,  in 
common  parlance,  to  be  twice  punished   for  the  same  offense. 
Every  citizen  of  the  United  States  is  also  a  citizen  of  a  state  or 
territory.     He  may  be  said  to  owe  allegiance  to  two  sovereigns, 
and  may  be  hable  to  punishment  for  an  infraction  of  the  laws  of 
either.     The  same  act  may  be  an  offense  or  transgression  of  the 
laws  of  both.     Thus,  an  assault  upon  the  marshal  of  the  Umted 
States    and  hindering  him  in  the  execution  of  legal  process,  is  a 
high  offense  against  the  United  States,  for  which  the  perpetrator 
is  liable  to  punishment;    and  the  same  act  may  be  also  a  gross 
breach  of  the  peace  of  the  state,  a  riot,  assault,  or  a  murder,  and 
subject  the  same  person  to  a  punishment,  under  the  state  laws,  for 
a  misdemeanor  or  felony.     That  either  or  both  may  (if  they  see  fit) 
punish  such  an  offender,  cannot  be  doubted.      Yet  it  cannot  be 
truly  averred  that  the  offender  has  been  twice  pumshed  for  the 
same  offense;    but  only  that  by  one  act  he  has  committed  two 
offenses,  for  each  of  which  he  is  justly  punishable.     He  could  not 


476  SOME    TOPICS    IN    THE    FIRST   TEN   AMENDMENTS. 

plead  the  punishment  by  one  in  bar  to  a  conviction  by  the  other; 
consequently,  this  court  has  decided,  in  the  case  of  Fox  v.  The 
State  of  Ohio  (5  How.  432),  that  a  state  may  punish  the  offense  of 
uttering  or  passing  false  coin,  as  a  cheat  or  fraud  practised  on  its 
citizens;  and,  in  the  case  of  the  United  States  v.  Marigold  (9  How. 
560),  that  Congress,  in  the  proper  exercise  of  its  authority,  may 
punish  the  same  act  as  an  offense  against  the  United  States.  .  .  . 

Upon  these  grounds,  we  are  of  opinion  that  the  act  of  Illinois, 
upon  which  this  indictment  is  founded,  is  constitutional,  and 
therefore  affirm  the  judgment. 

McLean,  J.  .  .  . 

It  is  contrary  to  the  nature  and  genius  of  our  government,  to 
punish  an  individual  twice  for  the  same  offense.  Where  the 
jurisdiction  is  clearly  vested  in  the  federal  government,  and  an 
adequate  punishment  has  been  provided  by  it  for  an  offense,  no 
state,  it  appears  to  me,  can  punish  the  same  act.  The  assertion  of 
such  a  power  involves  the  right  of  a  state  to  punish  all  offenses 
punishable  under  the  act  of  Congress.  This  would  practically 
disregard,  if  it  did  not  destroy,  this  important  branch  of  criminal 
justice,  clearly  vested  in  the  federal  government.  The  exercise 
of  such  a  power  by  the  states  would,  in  effect,  be  a  violation  of  the 
Constitution  of  the  United  States,  and  the  constitution  of  the 
respective  states.  They  all  provide  against  a  second  punishment 
for  the  same  act.  It  is  no  satisfactory  answer  to  this,  to  say  that 
the  states  and  federal  government  constitute  different  sovereign- 
ties, and,  consequently,  may  each  punish  offenders  under  its  own 
laws. 

It  is  true,  the  criminal  laws  of  the  federal  and  state  govern- 
ments emanate  from  different  sovereignties;  but  they  operate 
upon  the  same  people,  and  should  have  the  same  end  in  view. 
In  this  respect,  the  federal  government,  though  sovereign  within 
the  limitation  of  its  powers,  may,  in  some  sense,  be  considered 
as  the  agent  of  the  states,  to  provide  for  the  general  welfare,  by 
punishing  offenses  under  its  own  laws  within  its  jurisdiction.  It 
is  believed  that  no  government,  regulated  by  laws,  punishes  twice 
criminally  the  same  act.  And  I  deeply  regret  that  our  government 
should  be  an  exception  to  a  great  principle  of  action,  sanctioned  by 
humanity  and  justice. 

It  seems  to  me  it  would  be  as  unsatisfactory  to  an  individual  as 
it  would  be  illegal,  to  say  to  him  that  he  must  submit  to  a  second 
punishment  for  the  same  act,  because  it  is  punishable  as  well  under 
the  state  laws,  as  under  the  laws  of  the  federal  government,  .  .  . 


477 


UNITED    STATES    V.    PERF.Z. 

UNITED  STATES  v.   PEREZ. 

SECTION   II. 

Questions  not  under  State  Law. 

Supreme  Court  of  the  United  States.     1824. 

[9  Wheaton,  579.] 

Story,  J.,  delivered  the  opinion  of  the  court. 
This  cause  comes  up  from  the  Circuit  Court  for  the  Southern 
District  of  New  York,  upon  a  certificate  of  division  in  the  opimons 
of  the  judges  of  that  court.      The  prisoner,  Josef  Perez,  was  put 
upon  trial  for  a  capital  offense,  and  the  jury,  being  unable  to  agrei3, 
were  discharged  by  the  court  from  giving  any  verdict  upon  the 
incUctment,  .vnthout  the  consent  of  the  prisoner,  or  of  the  attorney 
for  the  United  States.     The  prisoner's  counsel,  thereupon,  claimed 
his  discharge  as  of  right,  under  these  circumstances;    and  this 
forms  the  point  upon  which  the  judges  were  divided.     The  ques- 
tion  therefore,  arises,  whether  the  discharge  of  the  jury  by  the 
court  from  giving  any  verdict  upon  the  indictment,  with  which  they 
were  charged,  ^^dthout  the  consent  of  the  prisoner,  is  a  bar  to  any 
future  trial  for  the  same  offense.     If  it  be,  then  he  is  entitled  to  be 
discharged  from  custody;  if  not,  then  he  ought  to  be  held  m  im- 
prisonment until  such  trial  can  be  had.     We  are  of  opimon,  that 
the  facts  constitute  no  legal  bar  to  a  future  trial.     The  prisoner 
has  not  been  convicted  or  acquitted,  and  may  again  be  put  upon 
his  defense      We  think,  that  in  all  cases  of  this  nature,  the  law 
has  invested  courts  of  justice  vnth  the  authority  to  chscharge  a 
jury  from  giving  any  verdict,  whenever,  in  their  opimon,  taking 
all  the  circumstances  into  consideration,  there  is  a  mamfest  neces- 
sity for  the  act,  or  the  ends  of  public  justice  would  other^vlse  be 
defeated      They  are  to  exercise  a  sound  discretion  on  the  subject; 
and  it  is  impossible  to  define  all  the  circumstances,  which  would 
render   it    proper    to    interfere.    ...   The    secm'ity   which   the 
pubhc  have  for  the  faithful,  sound,  and  conscientious  exercise  ot 
this  discretion,  rests,  in  this,  as  in  other  cases,  upon  the  responsi- 
bility of  the  judges,  under  their  oaths  of  office.     We  are  aware 
that  there  is  some  diversity  of  opinion  and  practice  on  this  subject, 
in  the  American  courts;  but,  after  weighing  the  question  Tvnth  due 
deUberation,  we  are  of  opinion,  that  such  a  discharge  constitutes 


478  SOME    TOPICS    IN    THE    FIRST   TEN   AMENDMENTS. 

no  bar  to  further  proceedings,  and  gives  no  right  of  exemption  to 
the  prisoner  from  being  again  put  upon  trial.  A  certificate  is  to  be 
directed  to  the  Circuit  Court,  in  conformity  to  this  opinion. 

Certificate.  This  cause  came  on,  &c.  On  consideration 
whereof,  it  is  ordered  by  the  court,  that  it  be  certified  to  the  Circuit 
Court  of  the  District  of  New  York,  that,  under  the  circfumstances  stated 
in  the  record,  the  prisoner,  Josef  Perez,  is  not  entitled  to  be  discharged 
from  custody,  and  may  again  be  put  to  trial,  upon  the  indictment  found 
against  him,  and  pending  in  the  said  court. 


REYNOLDS  v.   UNITED  STATES. 
Supreme  Court  of  the  United  States.     1878. 

[98  United  States,  145.]  i 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

In  the  District  Court  for  the  Third  Judicial  District  of  Utah 
Reynolds  was  indicted  for  bigamy  under  R.  S.  U.  S.  sec.  5352, 
which  provides  that  "  every  person  having  a  husband  or  wife 
living,  who  marries  another,  ...  in  a  territory  or  other  place 
over  which  the  United  States  have  jurisdiction,  is  guilty  of  bigamy, 
and  shall  be  punished  by  a  fine  of  not  more  than  $500,  and  by 
imprisonment  for  a  term  of  not  more  than  five  years."  On  the 
trial  the  accused  proved  that  at  the  time  of  his  second  marriage 
he  was  a  member  of  the  Mormon  Church  and  a  believer  in  its 
doctrines,  that  an  accepted  doctrine  of  that  church  was  the  duty  of 
male  members  to  practise  polygamy,  enjoined  by  God,  the  penalty 
for  faihng  to  practice  polygamy,  when  circumstances  would  achnit, 
being  damnation  in  the  life  to  come,  and  that  with  the  permission 
of  the  authorities  of  the  church  the  marriage  in  question  was 
performed  by  an  official  of  that  church.  Upon  this  proof  he  asked 
the  court  to  instruct  the  jury  that,  if  he  was  married  in  conformity 
with  what  he  believed  at  the  time  to  be  a  rehgious  duty,  he  should 
be  acquitted.  The  request  was  refused,  and  the  court  charged 
"  that  there  must  have  been  a  criminal  intent,  but  that  if  the 
defendant,  under  the  influence  of  a  religious  beUef  that  it  was 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


REYNOLDS   V.    UNITED    STATES.  479 

right,  — under  an  inspiration,  if  you  please,  that  it  was  right,  — 
deliberately  married  a  second  time,  having  a  first  wife  living,  the 
want  of  consciousness  of  evil  intent  —  the  want  of  understanding 
on  his  part  that  he  was  committing  a  crime  —  did  not  excuse  him; 
but  the  law  inexorably  in  such  case  implies  the  criminal  intent." 
The  accused  excepted  to  the  refusal  to  charge  and  to  the  charge  as 
given.  The  jury  found  him  guilty;  and  a  judgment  that  he  pay 
a  fine  of  S500  and  be  imprisoned  at  hard  labor  for  two  years  was 
affirmed  by  the  Supreme  Court  of  the  Territory  of  Utah.  There- 
upon this  writ  of  error  was  taken,  various  assignments  of  error 
being  made. 

G.  W.  Biddle  and  B.  Sheeks,  for  plaintiff  in  error;  and  C.  Devens, 
Attorney  General,  and  S.  F.  Phillips,  Solicitor  General,  contra. 

Waite,  C.  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

Upon  this  charge  and  refusal  to  charge  the  question  is  raised, 
whether  religious  belief  can  be  accepted  as  a  justification  of  an 
overt  act  made  criminal  by  the  law  of  the  land.  The  inquiry  is  not 
as  to  the  power  of  Congress  to  prescribe  criminal  laws  for  the 
territories,  but  as  to  the  guilt  of  one  who  kno\\ingly  violates  a  law 
which  has  been  properly  enacted,  if  he  entertains  a  religious 
behef  that  the  law  is  wTong. 

Congress  cannot  pass  a  law  for  the  government  of  the  terri- 
tories which  shall  prohibit  the  free  exercise  o^  religion.  The  first 
amendment  to  the  Constitution  expressly  forbids  such  legislation. 
Religious  freedom  is  guaranteed  everywhere  throughout  the 
United  States,  so  far  as  congressional  interference  is  concerned. 
The  question  to  be  determined  is,  whether  the  law  now  under 
consideration  comes  within  this  prohibition. 

The  word  "  rehgion  "  is  not  defined  in  the  Constitution.  We 
must  go  elsewhere,  therefore,  to  ascertain  its  meaning,  and  nowhere 
more  appropriately,  we  think,  than  to  the  history  of  the  times  in 
the  midst  of  which  the  provision  was  adopted.  The  precise  point 
of  the  inquiry  is,  what  is  the  religious  freedom  which  has  been 
guaranteed. 

Before  the  adoption  of  the  Constitution,  attempts  were  made 
in  some  of  the  colonies  and  states  to  legislate  not  only  in  respect 
to  the  estabhshment  of  religion,  but  in  respect  to  its  doctrines  and 
precepts  as  well.  The  people  were  taxed,  against  their  will,  for 
the  support  of  rehgion,  and  sometimes  for  the  support  of  particular 
sects  to  whose  tenets  they  could  not  and  did  not  subscribe.  Pun- 
ishments were  prescribed  for  a  failure  to  attend  upon  public  wor- 
ship, and  sometimes  for  entertaining  heretical  opinions.      The 


480  SOME   TOPICS   IN  THE   FIRST  TEN   AMENDMENTS. 

controversy  upon  this  general  subject  was  animated  in  many  of  the 
states,  but  seemed  at  last  to  culminate  in  Virginia.  In  1784,  the 
House  of  Delegates  of  that  state  having  under  consideration  "  a 
bill  establishing  provision  for  teachers  of  the  Christian  rehgion," 
postponed  it  until  the  next  session,  and  directed  that  the  bill 
should  be  published  and  distributed,  and  that  the  people  be  re- 
quested "  to  signify  their  opinion  respecting  the  adoption  of  such  a 
bill  at  the  next  session  of  assembly." 

This  brought  out  a  determined  opposition.  Amongst  others, 
Mr.  Madison  prepared  a  "  Memorial  and  Remonstrance,"  which 
was  widely  circulated  and  signed,  and  in  which  he  demonstrated 
"  that  religion,  or  the  duty  we  owe  the  Creator,"  was  not  within 
the  cognizance  of  civil  government.  Semple's  Virginia  Baptists, 
Appendix.  At  the  next  session  the  proposed  bill  was  not  only 
defeated,  but  another,  "  for  establishing  religious  freedom," 
drafted  by  Mr.  Jefferson,  was  passed.  1  Jeff.  Works,  45;  2  Howi- 
son,  Hist,  of  Va.  298.  In  the  preamble  of  this  act  (12  Hening's 
Stat.  84)  religious  freedom  is  defined;  and  after  a  recital  "  that  to 
suffer  the  civil  magistrate  to  intrude  his  powers  into  the  field  of 
opinion,  and  to  restrain  the  profession  or  propagation  of  principles 
on  supposition  of  their  ill  tendency,  is  a  dangerous  fallacy  which 
at  once  destroys  all  religious  liberty,"  it  is  declared  "  that  it  is 
time  enough  for  the  rightful  purposes  of  civil  government  for  its 
officers  to  interfere  when  principles  break  out  into  overt  acts 
against  peace  and  good  order."  In  these  two  sentences  is  found 
the  true  distinction  between  what  properly  belongs  to  the  church 
and  what  to  the  state. 

In  a  little  more  than  a  year  after  the  passage  of  this  statute  the 
convention  met  which  prepared  the  Constitution  of  the  United 
States.  Of  this  convention  Mr.  Jefferson  was  not  a  member, 
he  being  then  absent  as  minister  to  France.  As  soon  as  he  saw 
the  draft  of  the  Constitution  proposed  for  adoption,  he,  in  a  letter 
to  a  friend,  expressed  his  disappointment  at  the  absence  of  an 
express  declaration  insuring  the  freedom  of  religion  (2  Jeff.  Works, 
355),  but  was  wilhng  to  accept  it  as  it  was,  trusting  that  the  good 
sense  and  honest  intentions  of  the  people  would  bring  about  the 
necessary  alterations.  1  Jeff.  Works,  79.  Five  of  the  states, 
while  adopting  the  Constitution,  proposed  amendments.  Three  — 
New  Hampshire,  New  York,  and  Virginia  —  included  in  one  form 
or  another  a  declaration  of  rehgious  freedom  in  the  changes  they 
desired  to  have  made,  as  did  also  North  CaroUna,  where  the  con- 
vention at  first  dechned  to  ratify  the  Constitution  until  the  pro- 


REYNOLDS   V.    UNITED    STATES.  481 

posed  amendments  were  acted  upon.  Accordingly,  at  the  first 
session  of  the  first  Congress  the  amendment  now  under  con- 
sideration was  proposed  with  others  by  Mr.  MacUson.  It 
met  the  views  of  the  advocates  of  rehgious  freedom,  and  was 
adopted.  Air.  Jefferson  afterwards,  in  reply  to  an  address  to 
him  b}^  a  committee  of  the  Danbury  Baptist  Association  (8 
id.  113),  took  occasion  to  say:  "  Beheving  T\ath  3'ou  that  re- 
hgion  is  a  matter  which  lies  solely  between  man  and  his 
God;  that  he  owes  account  to  none  other  for  his  faith  or  his 
worship;  that  the  legislative  powers  of  the  government  reach 
actions  only,  and  not  opinions,  —  I  contemplate  with  sovereign 
reverence  that  act  of  the  whole  American  people  which  declared 
that  their  legislature  should  '  make  no  law  respecting  an  establish- 
ment of  religion  or  prohibiting  the  free  exercise  thereof,'  thus 
building  a  wall  of  separation  between  church  and  state.  Adhering 
to  this  expression  of  the  supreme  will  of  the  nation  in  behalf  of 
the  rights  of  conscience,  I  shall  see  with  sincere  satisfaction  the 
progress  of  those  sentiments  which  tend  to  restore  man  to  all  his 
natural  rights,  convinced  he  has  no  natural  right  in  opposition  to 
his  social  duties."  Coming  as  this  does  from  an  acknowledged 
leader  of  the  advocates  of  the  measure,  it  may  be  accepted  almost 
as  an  authoritative  declaration  of  the  scope  and  effect  of  the 
amendment  thus  secured.  Congress  was  deprived  of  all  legisla- 
tive power  over  mere  opinion,  but  was  left  free  to  reach  actions 
which  were  in  violation  of  social  duties  or  subversive  of  good 
order. 

Polygamy  has  always  been  ocUous  among  the  northern  and 
western  nations  of  Europe,  and,  until  the  establishment  of  the 
Mormon  Church,  was  almost  exclusively  a  feature  of  the  life  of 
Asiatic  and  of  African  people.  At  common  law,  the  second  mar- 
riage was  always  void  (2  Kent,  Com.  79),  and  from  the  earliest 
history  of  England  polygamy  has  been  treated  as  an  offense 
against  society.  .  .  . 

By  the  statute  of  1  James  I.  (c.  11),  the  offense,  if  committed 
in  England  or  Wales,  was  made  punishable  in  the  civil  courts,  and 
the  penalty  was  death.  As  this  statute  was  limited  in  its  opera- 
tion to  England  and  Wales,  it  was  at  a  very  early  period  re-enacted, 
generally  with  some  modifications,  in  ah  the  colonies.  In  connec- 
tion with  the  case  we  are  now  considering,  it  is  a  significant  fact 
that  on  the  8th  of  December,  1788,  after  the  passage  of  the  act 
establishing  religious  freedom,  and  after  the  convention  of  Virginia 
had  recommended  as  an  amendment  to  the  Constitution  of  the 


482  SOME    TOPICS    IN   THE    FIRST   TEN    AMENDMENTS. 

United  States  the  declaration  in  a  bill  of  rights  that  "  all  men  have 
an  equal,  natural,  and  unalienable  right  to  the  free  exercise  of 
religion,  according  to  the  dictates  of  conscience,"  the  legislature  of 
that  state  substantially  enacted  the  statute  of  James  I.,  death 
penalty  included,  because,  as  recited  in  the  preamble,  "  it  hath 
been  doubted  whether  bigamy  or  poligamy  be  jjunishable  by  the 
laws  of  this  commonwealth."  12  Hening's  Stat.  691.  From 
that  day  to  this  we  think  it  may  safely  be  said  there  never  has  been 
a  time  in  any  state  of  the  Union  when  polygamy  has  not  been 
an  offense  against  society,  cognizable  by  the  civil  courts  and  pun- 
ishable with  more  or  less  severity.  In  the  face  of  all  this  evidence, 
it  is  impossible  to  believe  that  the  constitutional  guaranty  of 
religious  freedom  was  intended  to  prohibit  legislation  in  respect 
to  this  most  important  feature  of  social  life.  Marriage,  while 
from  its  very  nature  a  sacred  obligation,  is  nevertheless,  in  most 
civilized  nations,  a  civil  contract,  and  usually  regulated  by 
law.  .  .  . 

In  our  opinion,  the  statute  immediatel}'^  under  consideration  is 
within  the  legislative  power  of  Congress.  It  is  constitutional  and 
valid  as  prescribing  a  rule  of  action  for  all  those  residing  in  the 
territories,  and  in  places  over  which  the  United  States  have 
exclusive  control.  This  being  so,  the  only  question  which  remains 
is,  whether  those  who  make  polygam}^  a  part  of  their  religion  are 
excepted  from  the  operation  of  the  statute.  If  they  are,  then  those 
who  do  not  make  polygamy  a  part  of  their  religious  belief  may  be 
found  guilty  and  punished,  while  those  who  do,  must  be  acquitted 
and  go  free.  This  would  be  introducing  a  new  element  into 
criminal  law.  Laws  are  made  for  the  government  of  actions,  and 
while  they  cannot  interfere  with  mere  religious  belief  and  opinions, 
they  may  with  practices.  Suppose  one  believed  that  human 
sacrifices  were  a  necessary  part  of  religious  worship,  would  it  be 
seriously  contended  that  the  civil  government  under  which  he 
lived  could  not  interfere  to  prevent  a  sacrifice  ?  Or  if  a  wife 
rehgiously  believed  it  was  her  duty  to  burn  herself  upon  the 
funeral  pile  of  her  dead  husband,  would  it  be  beyond  the  power 
of  the  civil  government  to  prevent  her  carrying  her  belief  into 
practice  ? 

So  here,  as  a  law  of  the  organization  of  society  under  the  exclu- 
sive dominion  of  the  United  States,  it  is  provided  that  plural  mar- 
riages shall  not  be  allowed.  Can  a  man  excuse  his  practices  to  the 
contrary  because  of  his  religious  belief  ?  To  permit  this  would  be 
to  make  the  professed  doctrines  of  reUgious  belief  superior  to  the 


In  re  rapier.  483 

law  of  the  land,  and  in  effect  to  permit  every  citizen  to  become  a 
law  unto  himself.  Government  could  exist  only  in  name  under 
such  circumstances.  .  .  .  Judgment  affirmed.^ 

Field,  J.  I  concur  ...  on  the  several  points  decided  except 
one  —  ...  the  admission  of  the  testimony  .  .  .  given  on  a 
former  trial  upon  a  different  indictment.  .  .  . 


In  re  RAPIER. 
Supreme  Court  of  the  United  States.     1891. 

[143  United  States,  110.)  2 

Original. 

Application  for  leave  to  file  petitions  for  writs  of  habeas  corpus 
was  made  in  behalf  of  persons  arrested  under  information  in  the 
District  Court;  for  the  Southern  District  of  Alabama  and  under 
indictments  in  the  Circuit  Court  for  the  Eastern  District  of 
Pennsylvania  respectively,  the  offenses  charged  being  mailing 
newspapers  containing  an  advertisement  of  the  Louisiana  Lottery 
and  mailing  a  letter  concerning  it,  in  disregard  of  the  act  of  1890 
(26  U.  S.  St.  465).  The  petitioners  relied,  among  other  things, 
upon  a  contention  that  the  statute  conflicted  with  that  provision 
of  the  First  Amendment  to  the  Constitution  of  the  United  States 
which  forbids  Congress  to  make  any  law  abridging  the  freedom  of 
the  press.  ' 

J.  C.  Carter  and  others,  for  petitioners;  and  Miller,  Atty.  Gen., 
and  Maury,  Asst.  Atty.  Gen.,  contra. 

Fuller,  C.  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

These  are  applications  for  discharge  by  writ  of  habeas  corpus 
from  arrest  for  alleged  violations  of  an  act  of  Congress,  approved 
September  19,  1890,  entitled  "  An  act  to  amend  certain  sections 
of  the  Revised  Statutes  relating  to  lotteries,  and  for  other  pur- 
poses."    26  Stat.  465,  c.  908. 

The  question  for  determination  relates  to  the  constitutionality 
of  section  3894  of  the  Revised  Statutes  as  amended  by  that  act. 

1  Ace:  Davis  v.  Beason,  133  U.  S.  333  (1890);  and  Church  of  Latter-Day 
Saints  V.  United  States,  136  U.  S.  1  (1890).  —  Ed. 

*  The  reporter's  statement  has  not  been  reprinted.  —  Ed, 


484  SOME    TOPICS    IN   THE    FIRST   TEN   AMENDMENTS. 

In  Ex  parte  Jackson,  96  U.  S.  727,  it  was  held  that  the  power 
vested  in  Congress  to  establish  post-offices  and  post-roads  em- 
braced the  regulation  of  the  entire  postal  syst(>m  of  the  country, 
and  that  under  it  Congress  may  designate  what  may  be  carried 
in  the  mail  and  what  excluded;  that  in  excluding  various  articles 
from  the  mails  the  object  of  Congress  is  not  to  interfere  with  the 
freedom  of  the  press  or  with  any  other  rights  of  the  people,  but  to 
refuse  the  facilities  for  the  distribution  of  matter  deemed  injurious 
by  Congress  to  the  public  morals;  and  that  the  transportation 
in  any  other  way  of  matters  excluded  from  the  mails  would  not  be 
forbidden.  Unless  we  are  prepared  to  overrule  that  decision,  it  is 
decisive  of  the  question  before  us. 

It  is  argued  that  in  Jackson's  case  it  was  not  urged  that  Congress 
had  no  power  to  exclude  lottery  matter  from  the  mails;  but  it  is 
conceded  that  the  point  of  want  of  power  was  passed  upon  in  the 
opinion.  This  was  necessarily  so,  for  the  real  question  was  the 
existence  of  the  power  and  not  the  defective  exercise  of  it.  And 
it  is  a  mistake  to  suppose  that  the  conclusion  there  expressed 
was  arrived  at  without  deliberate  consideration.  It  is  insisted 
that  the  express  powers  of  Congress  are  limited  in* their  exercise 
to  the  objects  for  which  they  were  entrusted,  and  that,  in  order  to 
justify  Congress  in  exercising  any  incidental  or  implied  powers  to 
carry  into  effect  its  express  authority,  it  must  appear  that  there  is 
some  relation  between  the  means  employed  and  the  legitimate  end. 
This  is  true,  but  while  the  legitimate  end  of  the  exercise  of  the 
power  in  question  is  to  furnish  mail  facilities  for  the  people  of  the 
United  States,  it  is  also  true  that  mail  facilities  are  not  required  to 
be  furnished  for  every  purpose. 

The  states  before  the  Union  was  formed  could  establish  post- 
offices  and  post-roads,  and  in  doing  so  could  bring  into  play  the 
police  power  in  the  protection  of  their  citizens  from  the  use  of  the 
means  so  provided  for  purposes  supposed  to  exert  a  demoralizing 
influence  upon  the  people.  When  the  power  to  establish  post- 
offices  and  post-roads  was  surrendered  to  the  Congress  it  was  as  a 
complete  power,  and  the  grant  carried  with  it  the  right  to  exercise 
all  the  powers  which  made  that  power  effective.  It  is  not  necessary 
that  Congress  should  have  the  power  to  deal  with  crime  or  im- 
morality within  the  states  in  order  to  maintain  that  it  possesses  the 
power  to  forbid  the  use  of  the  mails  in  aid  of  the  perpetration  of 
crime  or  immorality. 

The  argument  that  there  is  a  distinction  between  mala  prohibita 
and  mala  in  se,  and  that  Congress  might  forbid  the  use  of  the  mails 


WALKER   V.    N.    M.    &    S.    P.    R.    CO.  485 

in  promotion  of  such  acts  as  are  universally  regarded  as  mala  in  se, 
including  all  such  crimes  as  murder,  arson,  burglary,  etc.,  and  the 
offense  of  circulating  obscene  books  and  papers,  but  cannot  do  so 
in  respect  of  other  matters  which  it  might  regard  as  criminal  or 
immoral,  but  which  it  has  no  power  itself  to  prohibit,  involves  a 
concession  which  is  fatal  to  the  contention  of  petitioner's,  since  it 
would  be  for  Congress  to  determine  what  are  within  and  what 
without  the  rule;  but  we  think  there  is  no  room  for  such  a  dis- 
tinction here,  and  that  it  must  be  left  to  Congress  in  the  exercise  of 
a  sound  discretion  to  determine  in  what  manner  it  vdW  exercise 
the  power  it  undoubtedly  possesses. 

We  cannot  regard  the  right  to  operate  a  lottery  as  a  fundamental 
right  infringed  by  the  legislation  in  Ciuestion;  nor  are  we  able  to  see 
that  Congress  can  be  held,  in  its  enactment,  to  have  abridged  the 
freedom  of  the  press.  The  circulation  of  newspapers  is  not 
prohibited  but  the  government  decUnes  itself  to  become  an  agent 
in  the  circulation  of  printed  matter  which  it  regards  as  injurious 
to  the  people.  The  freedom  of  communication  is  not  abridged 
within  the  intent  and  meaning  of  the  constitutional  provision 
unless  Congress  is  absolutely  destitute  of  any  discretion  as  to  what 
shall  or  shall  not  be  carried  in  the  mails,  and  compelled  arbitrarily 
to  assist  in  the  (Ussemination  of  matters  condemned  by  its  judg- 
ment, through  the  governmental  agencies  which  it  controls.  That 
power  may  be  abused  furnishes  no  ground  for  a  denial  of  its  exis- 
tence, if  government  is  to  be  maintained  at  all.  .  .  . 

Writs  of  habeas  corpus  denied. 


WALKER  V.  NEW  MEXICO   AND  SOUTHERN 
PACIFIC   RAILROAD   CO. 

Supreme  Court  of  the  United  States.     1897. 
[165  United  States,  593.]  i 

Error  to  the  Supreme  Court  of  the  Territory  of  New  Mexico. 

In  the  District  Court  of  the  Second  Judicial  District  of  the 
Territory  of  New  Mexico  action  was  brought  to  recover  damages 
for  overflowing  lands.  The  jury  returned  a  general  verdict  for  the 
plaintiff,  assessing  damages;  and  the  jury,  in  response  to  questions 

1  The  reporter'3  statement  has  not  been  reprinted.  —  Ed. 


486  SOME    TOPICS    IN   THE    FIRST   TEN    AMENDMENTS. 

submitted  by  the  court,  returned  special  findings  of  fact  also. 
The  trial  court  entered  judgment  for  the  defendant,  on  the  ground 
that  the  special  findings  were  inconsistent  with  the  general  verdict; 
and  the  judgment  was  affirmed  by  the  territorial  Supreme  Court. 

N.  B.  Field  and  another,  for  plaintiff  in  error;  and  I{.  Dunlap 
and  another,  contra. 

Brewer,  J.,  dehvered  the  opinion  of  the  court. 

The  testimony  was  not  preserved,  and  the  case  is  submitted  to 
us  upon  the  pleadings,  the  verdict,  the  s])ecial  findings  of  fact  and 
the  judgment;  and  on  the  record  as  thus  presented  plaintiff  in 
error  rests  her  claim  of  reversal  upon  three  propositions:  First, 
that  the  act  of  the  territorial  legislature,  authorizing  special 
findings  of  fact  and  provicUng  for  judgment  on  the  special  findings, 
if  inconsistent  with  the  general  verdict  (Laws  of  New  Mex.  1889, 
c.  45,  page  97),  is  in  contravention  of  the  Seventh  Amendment  to 
the  Constitution  of  the  United  States  which  reads: 

"  In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law."  .  .  . 

First,  Avith  regard  to  the  constitutional  question,  the  specific 
objection  is  thus  stated  in  the  brief: 

"  It  is  not  contended,  although  the  English  authorities  would 
appear  to  warrant  the  contention,  that  at  the  common  law  the 
judge  might  not  require  the  jury  to  answer  special  questions,  or 
interrogate  the  jury  as  to  the  grounds  upon  which  their  general 
verdict  was  found;  but  it  is  most  earnestly  contended  that  the 
extent  of  the  power  of  the  judge,  if  in  his  opinion  the  special 
findings  or  answers  of  the  jury  to  interrogatories  were  inconsistent 
with  the  general  verdict,  was  to  set  aside  the  general  verdict  and 
award  a  venire  de  novo,  while  under  this  statute  authority  is  at- 
tempted to  be  conferred  upon  the  judge  to  render  final  judgment 
upon  the  special  findings." 

We  deem  it  unnecessary  to  consider  the  contention  of  defendant 
in  error  that  the  territorial  courts  are  not  courts  of  the  United 
States,  and  that  the  Seventh  Amendment  is  not  operative  in  the 
territories,  for  by  the  act  of  April  7,  1874,  c.  80,  18  Stat.  27, 
Congress,  legislating  for  all  the  territories,  declared  that  no  party 
"  shall  be  deprived  of  the  right  of  trial  by  jury  in  cases  cognizable 
at  common  law  ";  and  while  this  may  not  in  terms  extend  all  the 
provisions  of  the  Seventh  Amendment  to  the  territories,  it  does 


WALKER   V.    N.    M.    &    S.    P.    R.    CO.  48 < 

secure  all  the  rights  of  trial  by  jury  as  they  existed  at  common 

^  The  question  is  whether  this  act  of  the  territorial  legislature  in 
substance  impairs  the  right  of  trial  by  jury.     The  Seventh  Amend- 
ment, indeed,  does  not  attempt  to  regulate  matters  of  pleadmg  or 
practice   or  to  determine  in  what  way  issues  shall  be  framed  by 
which  questions  of  fact  are  to  be  submitted  to.  a  jury.     Its  aim  is 
not  to  preserve  mere  matters  of  form  and  procedure  but  substance 
of  right       This  requires  that  questions  of  fact  m  common  law 
actions  shall  be  settled  by  a  jury,  and  that  the  court  shall  not 
assume  directly  or  indirectly  to  take  from  the  jury  or  to  itself  such 
prerogative.      So  long  as  this  substance  of  right  is  preserved  the 
procedure  by  which  this  result  shall  be  reached  is  wholly  within  the 
discretion  of  the  legislature,  and  the  courts  may  not  set  aside  any 
legislative  provision  in  this  respect  because  the  form  of  action - 
the  mere  manner  in  which  questions  are  submitted  -  is  different 
from  that  which  obtained  at  the  common  law.  ,    ,     ,    , 

Now  a  general  verdict  embodies  both  the  law  and  the  facts. 
The  jury,  taking  the  law  as  given  by  the  court,  apply  that  law  to 
the  facts  as  they  find  thorn  to  be  and  express  their  conclusions  in  the 
verdict      The  power  of  the  court  to  grant  a  new  trial  it  m  its  judg- 
ment the  jury  have  misinterpreted  the  instructions  as  to  the  rules 
•   of  law  or  misapplied  them  is  unquestioned,  as  also  when  it  appears 
that  there  was  no  real  evidence  in  support  of  any  essential  fact. 
These  things  obtained  at  the  common  law;   they  do  not  trespass 
upon  the  prerogative  of  the  jury  to  determine  all  questions  of  fact 
and  no  one  to-day  doubts  that  such  is  the  legitimate  duty  and 
function  of  the  court,  notwithstanding  the  terms  of  the  constitu- 
tional guarantee  of  right  of  trial  by  jury.     Beyond  this,  it  was  no 
infrequent  to  ask  from  the  jury  a  special  rather  than  a  general 
verdict  that  is,  instead  of  a  verdict  for  or  against  the  plaintiff  or 
defendant  embodying  in  a  single  declaration  the  whole  conclusion 
of  the  trial,  one  which  found  specially  upon  the  various  facts  in 
issue    leaving  to  the  court  the  subsequent  duty  of  determimng 
upon  such  facts  the  relief  which  the  law  awarded  to  the  respective 

^""irwas  also  a  common  practice  when  no  special  verdict  was 
demanded  and  when  only  a  general  verdict  was  returned  to 
interrogate  the  jury  upon  special  matters  of  fact.  Whether  or  no  a 
jury  was  compelled  to  answer  such  interrogations,  or  whether,  if  it 
refused  or  failed  to  answer,  the  general  ^rdict  would  stand  or  no 
may  be  questioned.     Mayor  &c.  ..  Clark,  3  Ad.  &  EL  506.     But 


488  SOME   TOPICS   IN  THE    FIRST  TEN   AMENDMENTS. 

the  right  to  propound  such  interrogatories  was  undoubted  and 
often  recognized.  Walker  v.  Bailey,  65  Maine,  354;  Spurr  v. 
Shelburne,  131  Mass.  429.  In  the  latter  case  the  court  said  (page 
430) :  "  It  is  within  the  discretion  of  the  presiding  justice  to  put 
inquiries  to  the  jury  as  to  the  grounds  upon  which  they  found 
their  verdict,  and  the  answers  of  the  foreman,  assented  to  bj'  his 
fellows,  may  be  made  a  part  of  the  record,  and  will  have  the  effect 
of  special  findings  of  the  facts  stated  by  him.  And  no  exception 
Hes  to  the  exercise  of  this  cUscretion.  Dorr  v.  Fenno,  12  Pick.  521; 
Spoor  V.  Spooner,  12  Met.  281;  Mair  v.  Bassett,  117  Mass,  356; 
Lawler  v.  Earle,  5  Allen,  22."  So  that  the  putting  of  special 
interrogatories  to  a  jury  and  asking  for  specific  responses  thereto 
in  adcUtion  to  a  general  verdict  is  not  a  thing  unknown  to  the  com- 
mon law  and  has  been  recognized  independently  of  any  statute. 
Beyond  this  we  cannot  shut  our  eyes  to  the  fact  that  in  many 
states  in  the  Union  in  whose  constitutions  is  found  in  the  most 
emphatic  language  an  assertion  of  the  inviolability  of  trial  by  jury, 
are  statutes  similar  to  the  one  enacted  by  the  territorial  legislature 
of  New  Mexico;  that  those  statutes  have  been  uniformly  recog- 
nized as  valid,  and  that  a  large  amount  of  the  litigation  in  the  courts 
is  carried  through  in  obedience  to  the  provisions  of  such  statutes. 
It  would  certainly  startle  the  profession  to  be  told  that  such 
statutes  contravene  a  constitutional  requirement  of  the  inviola- 
bility of  jury  trials. 

Indeed,  the  very  argument  of  counsel  for  plaintiff  in  error  is  an 
admission  that  up  to  a  certain  extent  those  statutes  are  un- 
doubtedly valid.  That  argument  is  practically  that  when  the 
specific  findings  are  returned  and  found  to  be  conflicting  with  the 
general  verdict  the  court  is  authorized  to  grant  a  new  trial,  but  can 
do  no  more.  But  why  should  the  power  of  the  court  be  thus 
limited  ?  If  the  facts  as  specially  found  compel  a  judgment  in  one 
way,  why  should  not  the  court  be  permitted  to  apply  the  law  to  the 
facts  as  thus  found  ?  It  certainly  does  so  when  a  special  verdict  is 
returned.  When  a  general  verdict  is  returned  and  the  court 
determines  that  the  jury  have  either  misinterpreted  or  misapplied 
the  law  the  only  remedy  is  the  award  of  a  new  trial,  because  the 
constitutional  provision  forbids  it  to  find  the  facts.  But  when  the 
facts  are  found  and  it  is  obvious  from  the  inconsistency  between 
the  facts  as  found  and  the  general  verdict  that,  in  the  latter,  the 
jury  have  misinterpreted  or  misapplied  the  law,  what  constitutional 
mandate  requires  that  all  should  be  set  aside  and  a  new  inquiry 
made  of  another  jury  ?     Of  what  significance  is  a  question  as  to  a 


WALKER   V.    N.    M.    &    S.    P,    R.    CO,  489 

specific  fact  ?  Of  what  avail  are  special  interrogatories  and  special 
findings  thereon  if  all  that  is  to  result  therefrom  is  a  new  trial,  which 
the  court  might  grant  if  it  were  of  opinion  that  the  general  verdict 
contained  a  WTong  interpretation  or  application  of  the  rules  of  law  ? 
Indeed,  the  very  thought  and  value  of  special  interrogatories  is  to 
avoid  the  necessity  of  setting  aside  a  verchct  and  a  new  trial  — 
to  end  the  controversy  so  far  as  the  trial  court  is  concerned  upon 
that  single  response  from  the  jury. 

We  are  clearly  of  opinion  that  this  territorial  statute  does  not 
infringe  any  constitutional  pro\'ision,  and  that  it  is  within  the 
power  of  the  legislature  of  a  territory  to  provide  that  on  a  trial  of  a 
common  law  action  the  court  may,  in  adcUtion  to  the  general 
verdict,  require  specific  answers  to  special  interrogatories,  and, 
when  a  conflict  is  found  between  the  two,  render  such  judgment 
as  the  answers  to  the  special  questions  compel.  .  .  . 

Judgment  affirmed. 


CASES  ON  CONSTITUTIONAL  LAW 


BOOK  III. 


SOME    PROVISIONS    PROTECTING    THE    INDIVIDUAL 
AND   SIMULTANEOUSLY   PROMOTING    NATIONALISM. 


CHAPTER   I. 

SLAVERY   AND   INVOLUNTARY   SEBVITUDE. 

DRED   SCOTT   v.   SANDFORD. 

Supreme  Court  of  the  United  States.     1857. 

[19  Howard,  393.] ' 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  ^Missouri. 

In  1834,  Dred  Scott,  a  negro  slave  belonging  to  Dr.  Emerson,  a 
surgeon  in  the  army  of  the  United  States,  was  taken  by  his  master 
from  Missouri  to  the  military  post  at  Rock  Island,  in  Illinois;  and 
there  he  was  held  as  a  slave  until  1836,  when  he  was  taken  by  his 
master  to  the  military  post  at  Fort  Snelling,  in  the  Territory  of 
Upper  Louisiana,  north  of  Missouri.  The  constitution  of  Illinois 
prohibited  slavery.  The  act  of  Congress  of  1820,  known  as  the 
Missouri  Compromise,  prohibited  slavery  in  the  Territory  of 
Upper  Louisiana.  At  Fort  Snelling  Dred  Scott,  with  his  master's 
consent,  was  married  to  Harriet,  a  negro  slave  belonging  to  Alajor 
Taliaferro,  of  the  army.  Harriet  was  later  })ought  by  Dr.  Emer- 
son. Eliza,  daughter  of  Dred  Scott  and  Harriet,  was  born  on 
board  the  steamboat  Gipsey,  on  the  ^lississippi,  north  of  the  north 
line  of  [Missouri.  In  1838  Dr.  Emenson  took  Dred  Scott,  Harriet, 
and  Eliza  to  Missouri,  where  they  lived  until  the  bringing  of  this 
suit.  Another  daughter,  Lizzie,  was  born  at  the  military  post 
called  Jefferson  Barracks,  ^Missouri.     Before  the  commencement  of 

'  The  reporter's  statement  has  not  been  reprinted.  As  the  opinions  cover 
two  hundred  and  thirty-four  pages,  a  reader  interested  in  the  topics  treated 
should  resort  to  the  original  report.  —  Ed. 

491 


492  SLAVERY   AND    INVOLUNTARY   SERVITUDE. 

this  suit,  Dr.  Emerson  sold  Dred  Scott,  Harriet,  Eliza,  and  Lizzie 
to  Sandford,  who  held  them  as  slaves.  Sandford  was  a  citizen  of 
New  York.  Dred  Scott  brought  against  Sandford,  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Missouri,  an  action 
of  trespass  vi  et  armis  for  acts  as  to  Dred  Scott  and  family  which 
would  have  been  la\\'ful  in  case  the  relation  of  master  and  slave 
existed. 

There  was  a  plea  in  abatement  as  follows : 

And  the  said  John  F.  A.  Sandford,  in  his  own  proper  person, 
comes  and  saj^s  that  this  court  ought  not  to  have  or  take  further 
cognizance  of  the  action  aforesaid,  because  he  says  that  said  cause 
of  action,  and  each  and  every  of  them  (if  any  such  have  accrued 
to  the  said  Dred  Scott),  accrued  to  the  said  Dred  Scott  out  of  the 
jurisdiction  of  this  court,  and  exclusively  within  the  jurisdiction  of 
the  courts  of  the  State  of  Missouri,  for  that,  to  vnt:  the  said 
plaintiff,  Dred  Scott,  is  not  a  citizen  of  the  State  of  Missouri,  as 
alleged  in  his  declaration,  because  he  is  a  negro  of  African  descent ; 
his  ancestors  were  of  pure  African  blood,  and  were  brought  into 
this  country  and  sold  as  negro  slaves,  and  this  the  said  Sandford  is 
ready  to  verify.  Wherefore,  he  prays  judgment  whether  this 
court  can  or  will  take  further  cognizance  of  the  action  aforesaid. 

A  demurrer  to  the  plea  in  abatement  was  sustained. 

The  defendant  then  pleaded:  (1)  Not  guilty;  (2)  That  the 
plaintiff  was  a  negro  slave,  the  lawful  property  of  the  defendant, 
and,  as  such,  the  defendant  gently  laid  his  hands  upon  him  and 
thereby  had  only  restrained  him,  as  the  defendant  had  a  right  to 
do;  and  (3)  That  with  respect  to  the  wife  and  daughters  of  the 
plaintiff,  in  the  second  and  third  counts  of  the  declaration  men- 
tioned, the  defendant  had,  as  to  them,  only  acted  in  the  same 
manner  and  with  the  same  legal  right.  The  plaintiff  joined  issue 
on  the  first  of  these  pleas,  and  to  the  second  and  third  replied  that 
the  defendant  committed  the  trespasses  of  his  own  wrong. 

There  was  an  agreed  statement  of  facts,  substantially  as  sum- 
marized ;  and  it  was  also  agreed  that  Dred  Scott  had  brought  suit 
for  his  freedom  in  the  Circuit  Court  of  Missouri  for  St.  Louis 
County,  that  in  that  court  there  had  been  a  verdict  and  judgment 
in  his  favor,  that  the  Supreme  Court  of  Missouri,  on  writ  of  error, 
had  reversed  that  judgment  and  had  remanded  the  case  to  the 
lower  court  (15  Mo.  682),  where  it  had  been  continued  to  await  the 
decision  of  this  case. 

The  plaintiff  moved  the  court  to  instruct  the  jury  to  find  for  the 
plaintiff;  but  the  court  refused,  and,  on  motion  of  the  defendant, 


DRED    SCOTT   V.    SANDFORD.  493 

instructed  the  jury  to  find  for  the  defendant.  The  jury  so  found, 
and  judgment  was  given  accordingly.  After  ineffectual  motion 
for  a  new  trial,  the  plaintiff,  having  duly  excepted  to  the  rulings  of 
the  court  as  to  the  instructions,  brought  the  case  up  on  writ  of  error. 

The  case  was  argued  in  the  Supreme  Court  at  December  term, 
1855,  and  reargued  at  December  term,  1856. 

Blair  and  G.  T.  Curtis,  for  plaintiff  in  error;  and  Geyer  and 
Johnson,  contra. 

Taney,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

There  are  two  leading  questions  presented  by  the  record: 

1.  Had  the  Circuit  Court  of  the  United  States  jurisdiction  to 
hear  and  determine  the  case  between  these  parties.     And 

2.  If  it  had  jurisdiction,  is  the  judgment  it  has  given  erroneous 
or  not  ?  .  .  . 

Before  we  speak  of  the  pleas  in  bar,  it  will  be  proper  to  dispose 
of  the  questions  which  have  arisen  on  the  plea  in  abatement. 

That  plea  denies  the  right  of  the  plaintiff  to  sue  in  a  court  of  the 
United  States,  for  the  reasons  therein  stated.  ... 

It  is  suggested,  however,  that  this  plea  is  not  before  us;  and 
that  as  the  judgment  in  the  court  below  on  this  plea  was  in  favor 
of  the  plaintiff,  he  does  not  seek  to  reverse  it,  or  bring  it  before  the 
court  for  revision  by  his  writ  of  error;  and  also  that  the  defendant 
waived  this  defense  by  pleading  over,  and  thereby  admitted  the 
jurisdiction  of  the  court.  .  .  . 

When  a  plaintiff  sues  in  a  court  of  the  United  States,  it  is  neces- 
sary that  he  should  show,  in  his  pleading,  that  the  suit  he  brings  is 
^^^thin  the  jurisdiction  of  the  court,  and  that  he  is  entitled  to  sue 
there.  And  if  he  omits  to  do  this,  and  should,  by  any  oversight  of 
the  Circuit  Court,  obtain  a  judgment  in  his  favor,  the  judgment 
would  be  reversed  in  the  appellate  court  for  want  of  jurisdiction 
in  the  court  below.  The  jurisdiction  would  not  be  presumed,  as 
in  the  case  of  a  common-law  English  or  State  court,  unless  the 
contrary  appeared.  .  .  . 

In  this  case,  the  citizenship  is  averred,  but  it  is  denied  by  the 
defendant  in  the  manner  required  by  the  rules  of  pleading,,  and 
the  fact  upon  which  the  denial  is  based  is  admitted  by  the  de- 
murrer.  ... 

It  will  be  observed,  that  the  plea  applies  to  that  class  of  persons 
only  whose  ancestors  were  negroes  of  the  African  race,  and  im- 
ported into  this  country,  and  sold  and  held  as  slaves.  The  only 
matter  in  issue  before  the  court,  therefore,  is,  whether  the  descend- 
ants of  such  slaves,  when  they  shall  be  emancipated,  or  who  are 


494  SLAVERY   AND   INVOLUNTARY   SERVITUDE. 

born  of  parents  who  had  become  free  before  their  birth,  are  citizens 
of  a  State,  in  the  sense  in  which  the  word  citizen  is  used  in  the 
Constitution  of  the  United  States.  .  .  . 

The  words  "  people  of  the  United  States  "  and  "  citizens  "  are 
synonymous  terms,  and  mean  the  same  thing.  They  both  de- 
scribe the  pohtical  body  who,  acoorcHng  to  our  republican  institu- 
tions, form  the  sovereignty,  and  who  hold  the  power  and  conduct 
the  government  through  their  representatives.  .  .  .  The  question 
before  us  is,  whether  the  class  of  persons  described  in  the  plea  in 
abatement  compose  a  portion  of  this  people,  and  are  constituent 
members  of  this  sovereignty  ?  We  think  they  are  not,  and  that 
they  are  not  included,  and  were  not  intended  to  be  included,  under 
the  word  "  citizens  "  in  the  Constitution,  antl  can  therefore  claim 
none  of  the  rights  and  privileges  which  that  instrument  provides 
for  and  secures  to  citizens  of  the  United  States.  On  the  contrary 
they  were  at  that  time  considered  as  a  subordinate  and  inferior 
class  of  beings,  who  had  been  subjugated  l)y  the  dominant  race, 
and,  whether  emancipated  or  not,  yet  remained  subject  to  their 
authority,  and  had  no  rights  or  privileges  but  such  as  those  who 
held  the  power  and  the  government  might  choose  to  grant 
them.  .  .  . 

In  discussing  this  question,  we  must  not  confound  the  rights  of 
citizenship  which  a  State  may  confer  within  its  own  limits,  and  the 
rights  of  citizenship  as  a  member  of  the  Union.  It  does  not  by 
any  means  follow,  because  he  has  all  the  rights  and  privileges 
of  a  citizen  of  a  State,  that  he  must  be  a  citizen  of  the  United 
States.  .  .  . 

It  is  true,  ever}^  person,  and  every  class  and  description  of  per- 
sons, who  were  at  the  time  of  the  adoption  of  the  Constitution 
recognized  as  citizens  in  the  several  States,  became  also  citizens  of 
this  new  political  body;  but  none  other;  it  was  formed  by  them, 
and  for  them  and  their  posterity,  but  for  no  one  else.  .  .  . 

In  the  opinion  of  the  court,  the  legislation  and  histories  of  the 
times,  and  the  language  used  in  the  Declaration  of  Independence, 
show,  that  neither  the  class  of  persons  who  had  been  imported  as 
slaves,  nor  their  descendants,  whether  they  had  become  free  or  not, 
were  then  acknowledged  as  a  part  of  the  people,  nor  intended  to  be 
included  in  the  general  words  used  in  that  memorable  instrument. 

It  is  difficult  at  this  day  to  realize  the  state  of  public  opinion  in 
relation  to  that  unfortunate  race,  which  prevailed  in  the  civilized 
and  enlightened  portions  of  the  world  at  the  time  of  the  Declaration 
of  Independence,  and  when  the  Constitution  of  the  United  States 


DRED   SCOTT   V.   SANDFORD,  495 

was  framed  and  adopted.  But  the  public  history  of  every  Euro- 
pean nation  displays  it  in  a  manner  too  plain  to  be  mistaken. 

They  had  for  more  than  a  century  before  been  regarded  as  beings 
of  an  inferior  order,  and  altogether  unfit  to  associate  with  the  white 
race,  either  in  social  or  political  relations;  and  so  far  inferior,  that 
they  had  no  rights  which  the  white  man  was  bound  to  respect;  and 
that  the  negro  might  justly  and  lawfully  be  reduced  to  slavery  for 
his  benefit.  He  was  bought  and  sold,  and  treated  as  an  ordinary 
article  of  merchandise  and  traffic,  whenever  a  profit  could  be  made 
by  it.  This  opinion  was  at  that  time  fixed  and  universal  in  the 
civilized  portion  of  the  white  race.  .  .  . 

It  would  be  impossible  to  enumerate  and  compress  in  the  space 
usually  allotted  to  an  opinion  of  a  court  the  various  laws,  marking 
the  condition  of  this  race,  which  were  passed  from  time  to  time 
after  the  Revolution,  and  before  and  since  the  adoption  of  the 
Constitution  of  the  United  States.  .  .  .  Chancellor  Kent,  whose 
accuracy  and  research  no  one  uill  question,  states,  in  the  sixth 
edition  of  his  Commentaries  (published  in  1848,  2d  vol.,  258,  note  b) 
that  in  no  part  of  the  country  except  Maine  did  the  African  race, 
in  point  of  fact,  participate  equally  with  the  whites  in  the  exercise 
of  civil  and  political  rights.  .  .  . 

Undoubtedly,  a  person  may  be  a  citizen,  that  is,  a  member  of  the 
community  who  form  the  sovereignty,  although  he  exercises  no 
share  of  the  political  power,  and  is  incapacitated  from  holding 
particular  offices.  Women  and  minors,  who  form  a  part  of  the 
political  family,  cannot  vote;  and  when  a  property  qualification  is 
required  to  vote  or  hold  a  particular  office,  those  who  have  not  the 
necessary  qualification  cannot  vote  or  hold  the  office,  yet  they  are 
citizens. 

So,  too,  a  person  may  be  entitled  to  vote  by  the  law  of  the  State, 
who  is  not  a  citizen  even  of  the  State  itself.  And  in  some  of  the 
States  of  the  Union  foreigners  not  naturalized  are  allowed  to  vote. 
And  the  State  may  give  the  right  to  free  negroes  and  mulattoes, 
but  that  does  not  make  them  citizens  of  the  State,  and  still  less  of 
the  United  States.  And  the  provision  in  the  Constitution  giving 
privileges  and  immunities  in  other  States,  does  not  apply  to 
them.  .  .  . 

We  are  aware  that  doubts  are  entertained  by  some  of  the  mem- 
bers of  the  court,  whether  the  plea  in  abatement  is  legally  before 
the  court  upon  this  writ  of  error;  but  if  that  plea  is  regarded  as 
waived,  or  out  of  the  case  upon  any  other  ground,  yet  the  question 
as  to  the  jurisdiction  of  the  Circuit  Court  is  presented  on  the  face 


496  SLAVERY   AND    INVOLUNTARY    SERVITUDE. 

of  the  bill  of  exception  itself,  taken  by  the  plaintiff  at  the  trial;  for 
he  admits  that  he  and  his  wife  were  born  slaves,  but  endeavors  to 
make  out  his  title  to  freedom  and  citizenship  by  showing  that  they 
were  taken  by  their  owner  to  certain  places,  hereinafter  mentioned, 
where  slavery  could  not  by  law  exist,  and  that  they  therel)y  be- 
came free,  and  upon  their  return  to  Missouri  became  citizens  of 
that  State. 

Now,  if  the  removal  of  which  he  speaks  did  not  give  them  their 
freedom,  then  by  his  own  admission  he  is  still  a  slave;  and  what- 
ever opinions  may  be  entertained  in  favor  of  the  citizenship  of  a 
free  person  of  the  African  race,  no  one  supposes  that  a  slave  is  a 
citizen  of  the  State  or  of  the  United  States.  .  .  . 

The  suit  ought,  in  this  view  of  it,  to  have  been  dismissed  by  the 
Circuit  Court,  and  its  judgment  in  favor  of  Sandford  is  erroneous, 
and  must  be  reversed. 

It  is  true  that  the  result  either  way,  by  dismissal  or  by  a  judg- 
ment for  the  defendant,  makes  very  little,  if  any,  difference  in  a 
pecuniary  or  personal  point  of  view  to  either  party.  But  the  fact 
that  the  result  would  be  very  nearly  the  same  to  the  parties  in 
either  form  of  judgment,  would  not  justify  this  court  in  sanctioning 
an  error  in  the  judgment  which  is  patent  on  the  record,  and  which, 
if  sanctioned,  might  be  drawn  into  precedent,  and  lead  to  serious 
mischief  and  injustice  in  some  future  suit. 

We  proceed,  therefore,  to  inquire  whether  the  facts  relied  on  by 
the  plaintiff  entitled  him  to  his  freedom.  .  .  . 

It  is  the  opinion  of  the  court  that  the  act  of  Congress  which  pro- 
hibited a  citizen  from  holding  and  owning  property  of  this  kind  in 
the  territory  of  the  United  States  north  of  the  line  therein  men- 
tioned, is  not  warranted  by  the  Constitution,  and  is  therefore  void; 
and  that  neither  Dred  Scott  himself,  nor  any  of  his  family,  were 
made  free  by  being  carried  into  this  territory;  even  if  they  had 
been  carried  there  by  the  owner,  with  the  intention  of  becoming  a 
permanent  resident. 

We  have  so  far  examined  the  case,  as  it  stands  under  the  Con- 
stitution of  the  United  States,  and  the  powers  thereby  delegated 
to  the  Federal  Government. 

But  there  is  another  point  in  the  case  which  depends  on  State 
power  and  State  law.  And  it  is  contended,  on  the  part  of  the 
plaintiff,  that  he  is  made  free  by  being  taken  to  Rock  Island,  in  the 
State  of  Illinois,  independently  of  his  residence  in  the  territory  of 
the  United  States;  and  being  so  made  free,  he  was  not  again 
reduced  to  a  state  of  slavery  by  being  brought  back  to  Missouri. 


DRED    SCOTT   V.    SANDFORD.  497 

Our  notice  of  this  part  of  the  case  will  be  very  brief;  for  the 
principle  on  which  it  depends  was  decided  in  this  court,  upon  much 
consideration,  in  the  case  of  Strader  et  al.  v.  Graham,  reported  in 
10th  Howard,  82,  In  that  case,  the  slaves  had  been  taken  from 
Kentucky  to  Ohio,  with  the  consent  of  the  owner,  and  afterwards 
brought  back  to  Kentucky.  And  this  court  held  that  their  status 
or  condition,  as  free  or  slave,  depended  upon  the  laws  of  Kentucky, 
when  they  were  brought  back  into  that  State,  and  not  of  Ohio;  and 
that  this  court  had  no  jurisdiction  to  revise  the  judgment  of  a  state 
court  upon  its  own  laws.  This  was  the  point  directly  before  the 
court,  and  the  decision  that  this  court  had  not  jurisdiction  turned 
upon  it,  as  will  be  seen  by  the  report  of  the  case. 

So  in  this  case.  As  Scott  was  a  slave  when  taken  into  the  State 
of  Illinois  by  his  owTier,  and  was  there  held  as  such,  and  brought 
back  in  that  character,  his  status,  as  free  or  slave,  depended  on  the 
laws  of  Missouri,  and  not  of  Illinois.  .  .  . 

Upon  the  whole,  therefore,  it  is  the  judgment  of  this  court,  that 
it  appears  by  the  record  before  us  that  the  plaintiff  in  error  is  not  a 
citizen  of  Missouri,  in  the  sense  in  which  that  word  is  used  in  the 
Constitution;  and  that  the  Circuit  Court  of  the  United  States,  for 
that  reason,  had  no  jurisdiction  in  the  case,  and  could  give  no 
judgment  in  it.  Its  judgment  for  the  defendant  must,  conse- 
quently, be  reversed,  and  a  mandate  issued,  directing  the  suit  to  be 
dismissed  for  want  of  jurisdiction. 

Wayne,  J.  .  .  .  The  opinion  of  the  court  has  my  unqualified 
assent. 

Nelson,  J.  .  .  .  With  respect  to  the  plea  in  abatement,  which 
went  to  the  citizenship  of  the  plaintiff,  and  his  competency  to  bring 
a  suit  in  the  Federal  courts,  the  common-law  rule  of  pleading  is, 
that  upon  a  judgment  against  the  plea  on  demurrer,  and  that  the 
defendant  answer  over,  and  the  defendant  submits  to  the  judgment, 
and  pleads  over  to  the  merits,  the  plea  in  abatement  is  deemed  to  be 
waived,  and  is  not  afterwards  to  be  regarded  as  a  part  of  the  record 
in  deciding  upon  the  rights  of  the  parties.  There  is  some  question, 
however,  whether  this  rule  of  pleading  applies  to  the  peculiar 
system  and  jurisdiction  of  the  Federal  courts.  As,  in  these  courts, 
if  the  facts  appearing  on  the  record  show  that  the  Circuit  Court 
had  no  jurisdiction,  its  judgment  will  be  reversed  in  the  appellate 
court  for  that  cause,  and  the  case  remanded  with  directions  to  be 
dismissed. 

In  the  view  we  have  taken  of  the  case,  it  will  not  be  necessary  to 
pass  upon  this  question,  and  we  shall  therefore  proceed  at  once  to 


498  SLAVERY   AND    INVOLUNTARY    SERVITUDE. 

an  examination  of  the  case  upon  its  merits.  The  question  upon 
the  merits,  in  general  terms,  is,  whether  or  not  the  removal  of  the 
plaintiff,  who  was  a  slave,  with  his  master,  from  the  State  of 
Missouri  to  the  State  of  Illinois,  with  a  view  to  a  temporary  resi- 
dence, and  after  such  residence  and  return  to  the  slave  state,  such 
residence  in  the  free  state  works  an  emancipation. 

As  appears  from  an  agreed  statement  of  facts,  this  question  has 
been  before  the  highest  court  of  the  State  of  Missouri,  and  a  judg- 
ment rendered  that  this  residence  in  the  free  state  has  no  such 
effect;  but,  on  the  contrary,  that  his  original  condition  continued 
unchanged.  .  .  . 

This  question  has  been  examined  in  the  courts  of  several  of  the 
slaveholding  states,  and  different  opinions  expressed  and  con- 
clusions arrived  at.  We  shall  hereafter  refer  to  some  of  them,  and 
to  the  principles  upon  which  they  are  founded.  Our  opinion  is, 
that  the  question  is  one  which  belongs  to  each  state  to  decide  for 
itself,  either  by  its  legislature  or  courts  of  justice;  and  hence,  in 
respect  to  the  case  before  us,  to  the  State  of  Missouri  —  a  question 
exclusively  of  Missouri  law,  and  which,  when  determined  by  that 
state,  it  is  the  duty  of  the  Federal  courts  to  follow  it.  In  other 
words,  except  in  cases  where  the  power  is  restrained  by  the  Con- 
stitution of  the  United  States,  the  law  of  the  state  is  supreme  over 
the  subject  of  slavery  ^\^thin  its  jurisdiction.  .  .  . 

Let  us  examine  a  little  more  closely  the  doctrine  of  those  who 
maintain  that  the  law  of  Missouri  is  not  to  govern  the  status  and 
condition  of  the  plaintiff.  They  insist  that  the  removal  and  tem- 
porary residence  with  his  master  in  lUinois,  where  slaverj^  is 
inhibited,  had  the  effect  to  set  him  free,  and  that  the  same  effect 
is  to  be  given  to  the  law  of  Illinois,  wdthin  the  State  of  Missouri, 
after  his  return.  Why  was  he  set  free  in  Illinois  ?  Because  the 
law  of  Missouri,  under  which  he  was  held  as  a  slave,  had  no  opera- 
tion by  its  own  force  extra-territorially;  and  the  State  of  Illinois 
refused  to  recognize  its  effect  within  her  limits,  upon  principles  of 
comity,  as  a  state  of  slavery  was  inconsistent  with  her  laws,  and 
contrary  to  her  policy.  But,  how  is  the  case  different  on  the  return 
of  the  plaintiff  to  the  State  of  Missouri  ?  Is  she  bound  to  recognize 
and  enforce  the  law  of  Illinois  ?  For,  unless  she  is,  the  status  and 
condition  of  the  slave  upon  his  return  remains  the  same  as  originally 
existed.  Has  the  law  of  Illinois  any  greater  force  within  the 
jurisdiction  of  Missouri,  than  the  laws  of  the  latter  within  that  of 
the  former  ?     Certainly  not.     They  stand  upon  an  equal  footing. 


DRED    SCOTT   V.    SANDFORD.  499 

Neither  has  any  force  extra-territorially,  except  what  may  be 
voluntarily  conceded  to  them.  .  .  . 

Our  conclusion  is  that  the  judgment  of  the  court  below  should  be 
affirmed. 

Grier,  J.  I  concur  in  the  opinion  delivered  by  Mr.  Justice 
Nelson  on  the  questions  discussed  by  him. 

I  also  concur  with  the  opinion  of  the  court  as  delivered  by  the 
Chief  Justice,  that  the  act  of  Congress  of  6th  March,  1820,  is 
unconstitutional  and  void;  and  that,  assuming  the  facts  as  stated 
in  the  opinion,  the  plaintiff  cannot  sue  as  a  citizen  of  Missouri  in 
the  courts  of  the  United  States.  But,  that  the  record  shows  a 
prima  facie  case  of  jurisdiction,  requiring  the  court  to  decide  all  the 
questions  properly  arising  in  it ;  and  as  the  decision  of  the  pleas  in 
bar  shows  that  the  plaintiff  is  a  slave,  and  therefore  not  entitled 
to  sue  in  a  court  of  the  United  States,  the  form  of  the  judgment  is  of 
little  importance;  for,  whether  the  judgment  be  affirmed  or  dis- 
missed for  want  of  jurisdiction,  it  is  justified  by  the  decision  of  the 
court,  and  is  the  same  in  effect  between  the  parties  to  the  suit. 

Daniel,  J.  .  .  .  My  opinion  is,  that  the  decision  of  the  Circuit 
Court,  upon  the  law  arising  upon  the  several  pleas  in  bar,  is  correct, 
but  that  it  is  erroneous  in  having  sustained  the  demurrer  to  the 
plea  in  abatement  of  the  jurisdiction;  that  for  this  error  the  deci- 
sion of  the  Circuit  Court  should  be  reversed,  and  the  cause  re- 
manded to  that  court,  ^^•ith  instructions  to  abate  the  action,  for  the 
reason  set  forth  and  pleaded  in  the  plea  in  abatement.  .  .  . 

Campbell,  J.  1  concur  in  the  judgment  pronounced  by  the 
Chief  Justice.  .  .  . 

My  opinion  in  this  case  is  not  affected  by  the  plea  to  the  juris- 
diction, and  I  shall  not  discuss  the  questions  it  suggests.  The 
claim  of  the  plaintiff  to  freedom  depends  upon  the  effect  to  be  given 
to  his  absence  from  Missouri,  in  company  with  his  master,  in 
Illinois  and  Minnesota,  and  this  effect  is  to  be  ascertained  by  a 
reference  to  the  laws  of  Missouri.  .  .  . 

The  discussions  in  the  state  courts  have  relieved  the  subject  of 
much  of  its  difficulty.  .  .  . 

Upon  this  record,  it  is  apparent  that  this  is  not  a  controversy 
between  citizens  of  different  states;  and  that  the  plaintiff,  at  no 
period  of  the  life  which  has  been  submitted  to  the  view  of  the  court, 
has  had  a  capacity  to  maintain  a  suit  in  the  courts  of  the  United 
States.  And  in  so  far  as  the  argument  of  the  Chief  Justice  upon 
the  plea  in  abatement  has  a  reference  to  the  plaintiff  or  his  family, 
in  anv  of  the  conditions  or  circumstances  of  their  lives,  as  presented 


500  SLAVERY  AND   INVOLUNTARY   SERVITUDE. 

in  the  evidence,  I  concur  in  that  portion  of  his  opinion.  I  concur  in 
the  judgment  which  expresses  the  conchision  that  the  Circuit  Court 
should  not  have  rendered  a  general  judgment. 

The  capacity  of  the  plaintiff  to  sue  is  involved  in  the  pleas  in 
bar,  and  the  verdict  of  the  jury  discloses  an  incapacity  under  the 
Constitution.  Under  the  Constitution  of  the  United  States,  his 
is  an  incapacity  to  sue  in  their  courts,  while,  by  the  laws  of  Mis- 
souri, the  operation  of  the  verdict  would  l)e  more  extensive.  I 
think  it  a  safe  conclusion  to  enforce  the  lesser  disabilit}'  imposed 
by  the  Constitution  of  the  United  States,  and  leave  to  the  plaintiff 
all  his  rights  in  INIissouri.  I  think  the  judgment  should  be  affirmed, 
on  the  ground  that  the  Circuit  Court  had  no  jurisdiction,  or  that 
the  case  should  be  reversed  and  remanded,  that  the  suit  may  be 
dismissed. 

Catron,  J.  ,  .  .  The  judgment  of  the  Circuit  Court  ujion  the 
plea  in  abatement  is  not  open,  in  my  opinion,  to  examination  in 
this  court  upon  the  plaintiff's  writ.  .  .  . 

There  being  nothing  in  controversy  here  but  the  merits,  I  will 
proceed  to  discuss  them. 

The  plaintiff  claims  to  have  acquired  property  in  himself,  and 
became  free,  by  being  kept  in  Illinois  during  two  years. 

The  Constitution,  laws,  and  policy  of  Illinois  are  somewhat 
peculiar  respecting  slavery.  Unless  the  master  becomes  an  in- 
habitant of  that  state,  the  slaves  he  takes  there  do  not  acquire 
their  freedom;  and  if  they  return  with  their  master  to  the  slave 
state  of  his  domicil,  they  cannot  assert  their  freedom  after  their 
return.  .  .  . 

It  is  next  insisted  for  the  plaintiff,  that  his  freedom  (and  that  of 
his  wife  and  eldest  child)  was  obtained  by  force  of  the  act  of  Con- 
gress of  1820,  usually  known  as  the  Missouri  compromise  act, 
which  declares:  "  That  in  all  that  territory  ceded  by  France  to  the 
United  States,  which  lies  north  of  thirty-six  degrees  thirty  minutes 
north  latitude,  slavery  and  involuntary  servitude  shall  be,  and  are 
hereb}^,  forever  prohibited." 

From  this  prohibition,  the  territory  now  constituting  the  State 
of  Missouri  was  excepted;  which  exception  to  the  stipulation  gave 
it  the  designation  of  a  compromise.  .  .  . 

I  hold  the  compromise  act  to  have  been  void;  and,  consequently 
that  the  plaintiff  Scott,  can  claim  no  benefit  under  it. 

For  the  reasons  above  stated,  I  concur  with  my  brother  judges 
that  the  plaintiff,  Scott,  is  a  slave,  and  was  so  when  this  suit  was 
brought. 


DRED    SCOTT   V.    SANDFORD.  '        501 

McLe.\n,  J.,  dissenting.  . 

In  the  first  place,  the  plea  to  the  jurisdiction  is  not  before  us,  on 
this  writ  of  error.  A  demurrer  to  the  plea  was  sustained,  which 
ruled  the  plea  bad,  and  the  defendant,  on  leave,  pleaded  over. 

The  decision  on  the  demurrei*  was  in  favor  of  the  plaintiff;  and 
as  the  plaintiff  prosecutes  this  writ  of  error,  he  does  not  complain 
of  the  decision  on  the  demurrer.  ,  .  . 

But  it  is  said,  if  the  court,  on  looking  at  the  record,  shall  clearly 
perceive  that  the  Circuit  Court  had  no  jurisdiction,  it  is  a  ground 
for  dismissal  of  the  case.  .  .  .  Under  such  circumstances,  the 
want  of  jurisdiction  in  the  Circuit  Court  must  be  so  clear  as  not  to 
admit  of  doubt.  Now,  the  plea  which  raises  the  question  of  juris- 
diction, in  my  judgment,  is  radically  defective.  The  gravamen  of 
the  plea  is  this:  "  That  the  plaintiff  is  a  negro  of  African  descent, 
his  ancestors  being  of  pure  African  blood,  and  were  brought  into 
this  country  and  sold  as  negro  slaves."  .  .  . 

He  is  averred  to  have  had  a  negro  ancestry,  but  this  does 
not  show  that  he  is  not  a  citizen  of  Missouri,  within  the  meaning 
of  the  act  of  Congress  authorizing  him  to  sue  in  the  Circuit 
Court.  .  .  . 

Being  born  under  our  Constitution  and  laws,  no  naturalization 
is  recjuired,  as  one  of  foreign  birth,  to  make  him  a  citizen.  The 
most  general  and  appropriate  definition  of  the  term  citizen  is  "  a 
freeman."  Being  a  freeman,  and  having  his  domicil  in  a  state 
different  from  that  of  the  defendant,  he  is  a  citizen  within  the  act 
of  Congress,  and  the  courts  of  the  Union  are  open  to  him.  .  .  . 

The  plea  does  not  show  hun  to  be  a  slave;  it  does  not  follow 
that  a  man  is  not  free  whose  ancestors  are  slaves.  .  .  . 

This  law  of  Congress,  which  prohibits  slavery  north  of  Missouri 
and  of  thirty-six  degrees  thirty  minutes,  is  declared  to  have  been 
null  and  void  by  my  brethren.  .  .  . 

If  Congress  may  establish  a  territorial  government  in  the  exer- 
cise of  its  discretion,  it  is  a  clear  principle  that  a  court  cannot 
control  that  discretion.  This  being  the  case,  I  do  not  see  on  what 
ground  the  act  is  held  to  be  void.  .  .  . 

Rachel  v.  Walker,  4  Mo.  350,  June  term,  1836,  is  a  case  involving, 
in  every  particular,  the  principles  of  the  case  before  us.  Rachel 
sued  for  her  freedom ;  and  it  appeared  that  she  had  been  bought  as 
a  slave  in  Missouri,  by  Stockton,  an  officer  of  the  army,  taken  to 
Fort  Snelling,  where  he  was  stationed,  and  she  was  retained  there 
as  a  slave  a  year;  and  then  Stockton  removed  to  Prairie  du  Chien, 
taking  Rachel  wdth  him  as  a  slave,  where  he  continued  to  hold  her 


502         *  SLAVERY    AND    INVOLUNTARY   SERVITUDE. 

three  years,  and  then  he  took  her  to  the  State  of  Missouri,  and  sold 
her  as  a  slave.  .  .  . 

The  court  said,  in  this  ease: 

"  The  officer  lived  in  Missouri  Territory,  at  the  time  he  bought 
the  slave;  he  sent  to  a  slaveholding  country  and  procured  her;  this 
was  his  voluntary  act,  done  without  anj'  other  reason  than  that  of 
his  convenience;  and  he  and  those  claiming  under  him  must  be 
holden  to  abide  the  consequences  of  introducing  slavery  both  in 
Missouri  Territory  and  Michigan,  contrary  to  law;  and  on  that 
ground  Rachel  was  declared  to  be  entitled  to  freedom." 

In  answer  to  the  argument  that,  as  an  officer  of  the  army,  the 
master  had  a  right  to  take  his  slave  into  free  territory,  the  court 
said  no  authority  of  law  or  the  Government  compelled  him  to  keep 
the  plaintiff  there  as  a  slave.  .  .  . 

The  case  of  Dred  Scott  v.  Emerson,  15  Mo.  682,  IMarch  term, 
1852,  .  .  .  involved  the  identical  question  before  us,  Emerson 
having,  since  the  hearing,  sold  the  plaintiff  to  Sandford,  the 
defendant. 

Two  of  the  judges  ruled  the  case,  the  Chief  Justice  dissenting.  .  . . 

When  Dred  Scott,  his  wife  and  children,  w^ere  removed  from 
Fort  Snelling  to  Missouri,  in  1838,  they  were  free,  as  the  law  was 
then  settled,  and  continued  for  fourteen  years  afterwards,  up  to 
1852,  when  the  above  decision  was  made.  .  .  . 

This  court  follows  the  established  construction  of  the  statutes 
of  a  state  by  its  Supreme  Court.  Such  a  construction  is  considered 
as  a  part  of  the  statute,  and  we  follow  it  to  avoid  two  rules  of  prop- 
erty in  the  same  state.  But  we  do  not  follow  the  decisions  of  the 
Supreme  Court  of  a  state  beyond  a  statutory  construction  as  a  rule 
of  decision  for  this  court.  .  .  . 

I  think  the  judgment  of  the  court  below  should  be  reversed. 

Curtis,  J.,  dissenting.  I  dissent  from  the  opinion  pronounced 
by  the  Chief  Justice,  and  from  the  judgment  which  the  majority  of 
the  court  thinlc  it  proper  to  render  in  this  case.  .  .  . 

It  is  alleged  by  the  defendant  in  error,  in  this  case,  that  the  plea 
to  the  jurisdiction  was  a  sufficient  plea;  that  it  shows,  on  inspection 
of  its  allegations,  confessed  by  the  demurrer,  that  the  plaintiff  was 
not  a  citizen  of  the  State  of  Missouri;  that  upon  this  record,  it  must 
appear  to  this  court  that  the  case  was  not  within  the  judicial  power 
of  the  United  States,  as  defined  and  granted  by  the  Constitution, 
because  it  was  not  a  suit  by  a  citizen  of  one  state  against  a  citizen 
of  another  state.  .  .  . 


DRED    SCOTT   V.    SANDFORD.  503 

But  it  is  not  necessary  to  determine  whether  the  defendant  can 
be  allowed  to  assign  want  of  jurisdiction  as  an  error  in  a  judgment 
in  his  own  favor.  The  true  question  is,  not  what  either  of  the 
parties  mav  be  allowed  to  do,  but  whether  this  court  will  affirm  or 
reverse  a  judgment  of  the  Circuit  Court  on  the  merits,  when  it 
appears  on  the  record,  by  a  plea  to  the  jurisdiction,  that  it  is  a 
case  to  which  the  judicial  power  of  the  United  States  does  not 

extend.  ... 

I  proceed,  therefore,  to  examine  the  plea  to  the  jurisdiction.  .  .  . 

Undoubtedly,  if  these  facts,  taken  together,  amount  to  an  allega- 
tion that,  at  the  time  of  action  brought,  the  plaintiff  was  himself  a 
slave,  the  plea  is  sufficient.  ... 

To  aver  that  his  ancestors  were  sold  as  slaves  is  not  equivalent, 
in  point  of  law,  to  an  averment  that  he  was  a  slave.  ... 

To  determine  whether  any  free  persons,  descended  from  Africans 
held  in  slavery,  were  citizens  of  the  United  States  under  the  Con- 
federation, and  consequently  at  the  time  of  the  adoption  of  the 
Constitution  of  the  United  States,  it  is  only  necessary  to  know 
whether  any  such  persons  were  citizens  of  either  of  the  States 
under  the  Confederation,  at  the  time  of  the  adoption  of  the  Con- 
stitution. 

Of  this  there  can  be  no  doubt.  At  the  time  of  the  ratification 
of  the  Articles  of  Confederation,  all  free  native-born  inhabitants 
of  the  States  of  New  Hampshire,  Massachusetts,  New  York,  New 
Jersey,  and  North  Carolina,  though  descended  from  African 
slaves,  were  not  only  citizens  of  those  States,  but  such  of  them  as 
had  the  other  necessary  qualifications  possessed  the  franchise  of 
electors,  on  equal  terms  \\'ith  other  citizens.  .  .  . 

The  conclusions  at  which  I  have  arrived  on  this  part  of  the  case 

are: 

First.  That  the  free  native-bom  citizens  of  each  state  are 
citizens  of  the  United  States. 

Second.  That  as  free  colored  persons  born  within  some  of  the 
states  are  citizens  of  those  states,  such  persons  are  also  citizens  of 
the  United  States. 

Third.  That  every  such  citizen,  residing  in  any  state,  has  the 
right  to  sue  and  is  liable  to  be  sued  in  the  Federal  courts,  as  a 
citizen  of  that  state  in  which  he  resides. 

Fourth.  That  as  the  plea  to  the  jurisdiction  in  this  case  shows 
no  facts,  except  that  the  plaintiff  was  of  African  descent,  and  his 
ancestors  were  sold  as  slaves,  and  as  these  facts  are  not  inconsistent 
with  his  citizenship  of  the  United  States,  and  his  residence  in  the 


504  SLAVERY  AND    INVOLUNTARY   SERVITUDE. 

State  of  Missouri,  the  plea  to  the  jurisdiction  was  bad,  and  the 
judgment  of  the  Circuit  Court  overruling  it  was  correct. 

I  dissent,  therefore,  from  that  part  of  the  opinion  of  the  majority 
of  the  court,  in  which  it  is  held  that  a  person  of  African  descent 
cannot  be  a  citizen  of  the  United  States;  and  I  regret  I  must  go 
further,  and  dissent  both  from  what  I  deem  their  assumption  of 
authority  to  examine  the  constitutionality  of  the  act  of  Congress 
commonly  called  the  Missouri  com]iromise  act,  and  the  grounds 
and  conclusions  announced  in  their  opinion.  .  .  . 

But  as,  in  my  opinion,  the  Circuit  Court  had  jurisdiction,  I  am 
obliged  to  consider  the  question  whether  its  judgment  on  the  merits 
of  the  case  should  stand  or  be  reversed. 

The  residence  of  the  plaintiff  in  the  State  of  Illinois,  and  the 
residence  of  himself  and  his  wife  in  the  territory  acquired  from 
France  lying  north  of  latitude  thirty-six  degrees  thirty  minutes, 
and  north  of  the  State  of  Missouri,  are  each  relied  on  by  the  plain- 
tiff in  error.  As  the  residence  in  the  territory  affects  the  plaintiff's 
wife  and  children  as  well  as  himself,  I  must  inquire  what  was  its 
effect. 

The  general  question  may  be  stated  to  be,  whether  the  plaintiff's 
status,  as  a  slave,  was  so  changed  by  his  residence  within  that 
territory,  that  he  was  not  a  slave  in  the  State  of  Missouri,  at  the 
time  this  action  was  brought. 

In  such  cases,  two  inquiries  arise,  which  may  be  confounded, 
but  should  be  kept  distinct. 

The  first  is,  what  was  the  law  of  the  Territory  into  which  the 
master  and  slave  went,  respecting  the  relation  between  them  ? 

The  second  is,  whether  the  State  of  Missouri  recognizes  and 
allows  the  effect  of  that  law  of  the  Territory,  on  the  status  of  the 
slave,  on  his  return  within  its  jurisdiction.  .  .  . 

It  would  not  be  easy  for  the  Legislature  to  employ  more  explicit 
language  to  signify  its  will  that  the  status  of  slavery  should  not 
exist  -wdthin  the  Territory,  than  the  words  found  in  the  act  of  1820, 
and  in  the  ordinance  of  1787;  and  if  any  doubt  could  exist  concern- 
ing their  application  to  cases  of  masters  coming  into  the  Territory 
with  their  slaves  to  reside,  that  doubt  must  yield  to  the  inference 
required  by  the  words  of  exception.  That  exception  is,  of  cases 
of  fugitive  slaves.  .  .  . 

But  it  is  a  distinct  question,  whether  the  law  of  Missouri 
recognized  and  allowed  effect  to  the  change  wrought  in  the  status 
of  the  plaintiff,  by  force  of  the  laws  of  the  Territory  of  Wis- 
consin. .  .  . 


DRED    SCOTT   V.    SANDFORD.  505 

It  is  generally  agreed  by  writers  upon  international  law,  and  the 
rule  has  been  judicially  applied  in  a  great  number  of  cases,  that 
wherever  any  question  may  arise  concerning  the  status  of  a  person, 
it  must  be  determined  according  to  that  law  which  has  next  pre- 
viously rightfully  operated  on  and  fixed  that  status.  And,  further, 
that  the  laws  of  a  countrj-  do  not  rightfully  operate  upon  and  fix  the 
status  of  persons  who  are  within  its  limits  in  itinere,  or  who  are 
abiding  there  for  definite  temporary  purposes,  as  for  health, 
curiosity,  or  occasional  business;  that  these  laws,  known  to  "WTiters 
on  public  and  private  international  law  as  personal  statutes, 
operate  only  on  the  inhabitants  of  the  country.  .  .  . 

On  what  ground  can  it  be  denied  that  all  valid  laws  of  the 
United  States,  constitutionally  enacted  by  Congress  for  the 
government  of  the  Territory,  rightfully  extended  over  an  officer  of 
the  United  States  and  his  servant  who  went  into  the  Territory  to 
remain  there  for  an  indefinite  length  of  time,  to  take  part  in  its 
civil  or  military  affairs  ?  .  .  . 

That  Congress  has  some  power  to  institute  temporary  govern- 
ments over  the  territor>%  I  beUeve  all  agree.  .  .  . 

I  construe  this  clause,  therefore,  as  if  it  had  read,  Congress  shall 
have  power  to  make  all  needful  rules  and  regulations  respecting 
those  tracts  of  countrj',  out  of  the  limits  of  the  several  states,  which 
the  United  States  have  acquired,  or  may  hereafter  acquire,  by 
cessions,  as  well  of  the  jurisdiction  as  of  the  soil,  so  far  as  the  soil 
may  be  the  property  of  the  party  making  the  cession,  at  the  time  of 
making  it.  .  .  . 

But  it  is  insisted,  that  whatever  other  powers  Congress  may  have 
respecting  the  territory  of  the  United  States,  the  subject  of  negro 
slavery  forms  an  exception. 

The  Constitution  declares  that  Congress  shall  have  power  to 
make  "  all  needful  rules  and  regulations  "  respecting  the  territory 
belonging  to  the  United  States.  .  .  . 

Slavery,  being  contrary  to  natural  right,  is  created  only  by  munic- 
ipal law.  This  is  not  only  plain  in  itself,  and  agreed  by  all  writers 
on  the  subject,  but  is  inferable  from  the  Constitution,  and  has  been 
explicitly  declared  by  this  court.  The  Constitution  refers  to 
slaves  as  "  persons  held  to  service  in  one  state,  under  the  laws 
thereof."  Nothing  can  more  clearly  describe  a  status  created  by 
municipal  law.  ... 

Is  it  conceivable  that  the  Constitution  has  conferred  the  right  on 
everj'  citizen  to  become  a  resident  on  the  territory  of  the  United 
States  with  his  slaves,  and  there  to  hold  them  as  such,  but  has 


506  SLAVERY    AND    INVOLUNTARY   SERVITUDE. 

neither  made  nor  provided  for  any  municipal  regulations  which  are 
essential  to  the  existence  of  slavery  ?  .  .  . 

I  am  of  opinion  that  so  much  of  the  several  acts  of  Congress  as 
prohibited  slavery  and  involuntary  servitude  within  that  part  of 
the  Territory  of  Wisconsin  lying  north  of  thirty-six  degrees  thirty 
minutes  north  latitude,  and  west  of  the  river  Mississippi,  were 
constitutional  and  valid  laws.  .  .  . 

In  my  opinion,  the  judgment  of  the  Circuit  Court  should  be 
reversed,  and  the  cause  remanded  for  a  new  trial.  ^ 


OSBORN   V.   NICHOLSON. 

Supreme  Court  of  the  United  States.     1872. 

[13  Wallace,  654.]  2 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Arkansas. 

Action  was  brought  in  1869  on  a  promissory  note  made  and 
maturing  in  1861.  The  plea  was  that  the  note  was  drawn  in  favor 
of  the  plaintiff  in  consideration  of  the  conveyance  to  him  of  a  negro 
slave,  and  that  on  January  1,  1862,  the  slave  was  liberated  by  the 
United  States  government.  On  demurrer,  judgment  was  given  for 
the  defendants. 

P.  Phillips  and  ^.  H.  Garland,  for  plaintiff  in  error;  and  Watkins 
and  Rose,  contra. 

SwAYNE,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

We  lay  out  of  view  in  limine  the  constitution  of  Arkansas  of 
1868,  which  annuls  all  contracts  for  the  purchase  or  sale  of  slaves, 
and  declares  that  no  court  of  the  state  should  take  cognizance  of 
any  suit  founded  on  such  a  contract,  and  that  nothing  should  ever 

1  The  history  of  law  as  to  slavery  may  be  traced  in  Pigg  v.  Cayley,  Noy 
27  (1617);  Shanley  v.  Harvey,  2  Eden,  126  (1762);  Sommersett's  Case,  Lofft 
1  (1772),  s.c.  20  Howell's  State  Trials,  1 ;  Rex  v.  Allen,  2  Hagg.  Adm.  94  (1827) 
Birney  v.  State,  8  Ohio,  230  (1837);  Prigg  v.  Pennsylvania,  16  Pet.  539  (1842) 
Jones  V.  Vanzandt,  5  How.  215  (1846);  Strader  v.  Graham,  10  How.  82  (1850) 
Ex  parte  Bushnell,  9  Ohio  State,  77  (1859);  and  Commonwealth  of  Kentucky 
V.  Dennison,  24  How.  66  (1860).  —  Ed. 

2  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


OSBORN   V.   NICHOLSON.  ^07 


be  collected  upon  any  judgment  or  decree  which  had  been  or  should 
thereafter  be,  "  rendered  upon  any  such  contract  or  obligation 
It  is  sufficient  to  remark  that  as  to  all  prior  transactions  the  consti- 
tution is  in  each  of  the  particulars  specified  clearly  in  conflict  with 
that  clause  of  the  Constitution  of  the  United  States,  which  ordains 
that  "  no  State  shall  "...''  pass  any  law  impairing  the  obuga- 
tions  of  contracts."  Von  Hoffman  v.  The  City  of  Quincy,  4  Wall. 
535-  White  V.  Hart,  13  Wall.  646.  Nor  do  we  deem  it  necessary 
to  discuss  the  validity  of  the  contract  here  in  question  when  it 
was  entered  into.  Being  vaUd  when  and  where  it  was  made, 
it  was  so  ever>^^here.  With  certain  qualifications  not  neces- 
sary to  be  considered  in  this  case,  this  is  the  rule  of  the  law  of 

nations.  ...  ,  i  i  i 

It  may  be  safely  asserted  that  this  contract  when  made  could 
have  been  enforced  in  the  courts  of  everj^  State  of  the  Umon,  and 
in  the  courts  of  every  civihzed  country  elsewhere.  •  •  ■ 

It  has  been  earnestly  insisted  that  contracts  for  the  purchase  and 
sale  of  slaves  are  contrary  to  natural  justice  and  right,  and  have  no 
validity  unless  sustained  by  positive  law;  that  the  right  to  enforce 
them  rests  upon  the  same  foundation,  and  that  when  the  institution 
is  abolished  all  such  contracts  and  the  means  of  their  enforcement, 
unless   expressly   saved,   are  thereby   destroyed.      Slavery  was 
originally  introduced  into  the  American  Colonies  by  the  mother 
country,  and  into  some  of  them  against  their  .vill  and  protestations 
In  most,  if  not  all  of  them,  it  rested  upon  universally  recogmzed 
custom,  and  there  were  no  statutes  legalizing  its  existence  more 
than  there  were  legalizing  the  tenure  of  any  other  species  of  per- 
sonal propertv.      Though  contrary  to  the  law  of  nature  it  was 
recognized  by  the  law  of  nations.     The  atrocious  traffic  m  human 
beings    torn  from  their  country  to  be  transported  to  hopeless 
bonda-e  in  other  lands,  known  as  the  slave  trade,  was  also  sanc- 
tioned by  the  latter  code.      1  Wildman's  International  Law,  70; 
Dana's  Wheaton,  199;  The  Antelope,  10  Wheaton,  67;  Le  Louis, 

2  Dodson,  210. 

Where  the  traffic  was  carried  on  by  the  subjects  of  governments 
which  had  forbidden  it,  a  different  rule  was  apphed.  The  Amedie, 
Acton,  240;  The  Diana,  1  Dodson,  95;  The  Fortuna,  lb.  81. 
Humane  and  just  sentunents  upon  the  subject  were  of  slow  gro^^tli 
in  the  minds  of  pubUcists.  1  Phillmore's  Law  of  Nations,  316 
The  institution  has  existed  largely  under  the  authority  of  the  most 
enlightened  nations  of  ancient  and  modern  times.  Wherever 
found,  the  rights  of  the  owner  have  been  regarded  there  as  sur- 


508  SLAVERY   AND    INVOLUNTARY   SERVITUDE. 

rounded  by  the  same  sanctions  and  covered  by  the  same  protection 
as  other  property.  Le  Louis,  2  Dodson,  250.  The  British  govern- 
ment paid  for  the  slaves  carried  off  by  its  troops  from  this  country, 
in  the  war  of  1812,  as  they  did  for  other  private  property  in  the 
same  category.  Lawrence's  Wheaton,  496.  The  Constitution  of 
the  United  States  guaranteed  the  return  of  persons  "  held  to  service 
or  labor  in  one  state  under  the  laws  thereof,  escaping  into  another." 
"  The  object  of  this  clause  was  to  secure  to  the  citizens  of  the  slave- 
holding  states  the  complete  right  and  title  of  ownership  in  their 
slaves  as  property  in  every  State  in  the  Union,  into  which  they 
might  escape."  Historically  it  is  known  that  without  this  pro- 
vision, the  Constitution  would  not  have  been  adopted,  and  the 
Union  could  not  have  been  formed.  Prigg  v.  Pennsylvania,  16 
Peters,  611. 

But  without  considering  at  length  the  several  assumptions  of  the 
proposition,  it  is  a  sufficient  answer  to  say  that  when  the  thirteenth 
amendment  to  the  Constitution  of  the  United  States  was  adopted 
the  rights  of  the  plaintiff  in  this  action  had  become  legally  and 
completely  vested.  .  .  .  The  doctrines  of  the  repeal  of  statutes 
and  the  destruction  of  vested  rights  by  implication  are  alike 
unfavored  in  the  law.  Neither  is  to  be  admitted  unless  the  impli- 
cation is  so  clear  as  to  be  equivalent  to  an  explicit  declaration. 
Every  doubt  should  be  resolved  against  a  construction  so  fraught 
with  mischiefs.  There  is  nothing  in  the  language  of  the  amend- 
ment which  in  the  slightest  degree  warrants  the  inference  that  those 
who  framed  or  those  who  adopted  it  intended  that  such  should  be 
its  effect.  .  .  . 

Many  cases  have  been  decided  by  the  highest  state  courts  where 
the  same  questions  arose  which  we  have  been  called  upon  to  con- 
sider in  this  case.  In  very  nearly  all  of  them  the  contract  was 
adjudged  to  be  valid,  and  was  enforced.  They  are  too  numerous 
to  be  named.  The  opinions  in  some  of  them  are  marked  by  great 
abihty. 

Whatever  we  may  think  of  the  institution  of  slavery  viewed  in 
the  light  of  religion,  morals,  humanity,  or  a  sound  political  economy, 
—  as  the  obligation  here  in  question  was  valid  when  executed, 
sitting  as  a  court  of  justice,  we  have  no  choice  but  to  give  it  effect. 
We  cannot  regard  it  as  differing  in  its  legal  efficacy  from  any  other 
unexecuted  contract  to  pay  money  made  upon  a  sufficient  con- 
sideration at  the  same  time  and  place.  Neither  in  the  precedents 
and  principles  of  the  common  law,  nor  in  its  associated  system  of 
equity  jurisprudence,  nor  in  the  older  system  known  as  the  civil 


ROBERTSON   V.    BALDWIN.  509 

law,  is  there  anything  to  warrant  the  result  contended  for  by  the 
defendants  in  error.  Neither  the  rights  nor  the  interests  of  those 
of  the  colored  race  lately  in  bondage  are  affected  by  the  conclu- 
sions we  have  reached.  This  opinion  decides  nothing  as  to  the 
effect  of  President  Lincoln's  emancipation  proclamation.  We  have 
had  no  occasion  to  consider  that  subject. 

Judgment  reversed,  and  the  cause  remanded  to  the  Circuit  Court 
with  directions  to  proceed  in  conformity  to  this  opinion.^ 

Chase,  C.  J.,  dissented.  .  .  . 


ROBERTSON  v.   BALDWIN. 
Supreme  Court  of  the  United  States.     1897. 

[165  United  States,  275.]  ^ 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Northern  District  of  Alaska,  which  had  dismissed  a  writ  of  habeas 
corpus  issued  upon  petition  of  Robertson  and  three  others.  The 
petitioners  had  shipped  as  seamen  for  a  voyage  from  San  Francisco, 
Cal.,  to  Knappton,  Wash.,  thence  to  Valparaiso  and  other  foreign 
ports  to  be  selected  by  the  master,  and  thence  to  the  United  States. 
They  deserted  at  a  port  in  Oregon.  They  were  arrested,  and  by  a 
justice  of  the  peace  were  committed  to  jail  until  the  vessel  was  ready 
for  sea,  when  they  were  taken  from  jail  and  put  on  board.  They 
refused  to  obey  the  master.  They  were  arrested  for  refusing  to 
work,  and  by  a  United  States  commissioner  were  held  to  answer 
before  the  District  Court.  They  then  sued  out  this  writ;  but,  as 
all  proceedings  were  in  accordance  ^\^th  the  statutes  of  the  United 
States  (R.  S.  §§  4596-4599),  the  writ  was  dismissed  and  the  pris- 
oners were  remanded  to  the  custody  of  the  United  States  marshal. 

J.  H.  Ralston  and  others,  for  appellants;  and  H.  Conrad,  Solicitor 
General,  contra. 

Brown,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  question  whether  sections  4598  and  4599  conflict  with  the 
Thirteenth    Amendment,    forbidding    slavery    and    involuntary 

1  See  Hall  v.  United  States,  92  U.  S.  27  (1876).  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


510  SLAVERY   AND   INVOLUNTARY   SERVITUDE. 

servitude,  depends  upon  the  construction  to  be  given  to  the  term 
"  involuntary  servitude."  Does  the  epithet  "  involuntary  " 
attach  to  the  word  "  servitude  "  continuously,  and  make  illegal 
any  service  which  becomes  involuntary  at  any  time  during  its 
existence;  or  does  it  attach  only  at  the  inception  of  the  servitude, 
and  characterize  it  as  unla^vful  because  unlawfully  entered  into  ? 
If  the  former  be  the  true  construction,  then  no  one,  not  even  a 
soldier,  sailor  or  apprentice,  can  surrender  his  liberty,  even  for  a 
day;  and  the  solcher  may  desert  his  regiment  upon  the  eve  of 
battle,  or  the  sailor  abandon  his  ship  at  any  intermediate  port  or 
landing,  or  even  in  a  storm  at  sea,  provided  only  he  can  find  means 
of  escaping  to  another  vessel.  If  the  latter,  then  an  individual 
may,  for  a  valuable  consideration,  contract  for  the  surrender  of  his 
personal  liberty  for  a  definite  time  and  for  a  recognized  purpose, 
and  subordinate  his  going  and  coming  to  the  will  of  another  during 
the  continuance  of  the  contract;  —  not  that  all  such  contracts 
would  be  lawful,  but  that  a  servitude  which  was  knowingly  and 
willingly  entered  into  could  not  be  termed  involuntary.  Thus, 
if  one  should  agree,  for  a  yearly  wage,  to  serve  another  in  a  partic- 
ular capacity  during  his  life,  and  never  to  leave  his  estate  without 
his  consent,  the  contract  might  not  be  enforceable  for  the  want  of  a 
legal  remedy,  or  might  be  void  upon  grounds  of  public  policy,  but 
the  servitude  could  not  be  properly  termed  involuntary.  Such 
agreements  for  a  limited  personal  servitude  at  one  time  were  very 
common  in  England,  and  by  statute  of  June  17,  1823,  4  Geo.  IV, 
c.  34,  §  3,  it  was  enacted  that  if  any  servant  in  husbandry,  or  any 
artificer,  calico  printer,  handicraftsman,  miner,  collier,  keelman, 
pitman,  glassman,  potter,  laborer  or  other  person,  should  contract 
to  serve  another  for  a  definite  time,  and  should  desert  such  service 
during  the  term  of  the  contract,  he  was  made  liable  to  a  criminal 
punishment.  The  breach  of  a  contract  for  personal  service  has 
not,  however,  been  recognized  in  this  country  as  involving  a  lia- 
bility to  criminal  punishment,  except  in  the  cases  of  soldiers, 
sailors  and  possibly  some  others,  nor  would  public  opinion  tolerate 
a  statute  to  that  effect. 

But  we  are  also  of  opinion  that,  even  if  the  contract  of  a  seaman 
could  be  considered  within  the  letter  of  the  Thirteenth  Amend- 
ment, it  is  not,  within  its  spirit,  a  case  of  involuntary  servitude. 
The  law  is  perfectly  well  settled  that  the  first  ten  amendments  to 
the  Constitution,  commonly  known  as  the  Bill  of  Rights,  were  not 
intended  to  lay  down  any  novel  principles  of  government,  but 
simply  to  embody  certain  guaranties  and  immunities  which  we 


ROBERTSON    V.    BALDWIN. 


511 


had  inherited  from  our  English  ancestors,  and  which  had  from  time 
immemorial  been  subject  to  certain  well-recognized  exceptions 
arising  from  the  necessities  of  the  case.      In  incorporating  these 
principles  into  the  fundamental  law  there  was  no  intention  of  dis- 
regarding the  exceptions,  which  continued  to  be  recognized  as  if 
they  had  been  formally  expressed.     Thus,  the  freedom  of  speech 
and  of  the  press  (art.  1)  does  not  permit  the  pubUcation  of  libels, 
blasphemous  or  indecent  articles,  or  other  publications  injurious  to 
public  morals  or  private  reputation;    the  right  of  the  people  to 
keep  and  bear  arms  (art.  2)  is  not  infringed  by  laws  prohibiting  the 
carrying  of  concealed  weapons;  the  provision  that  no  person  shall 
be  twice  put  in  jeopardy  (art.  5)  does  not  prevent  a  second  trial,  if 
upon  the  first  trial  the  jury  failed  to  agree,  or  if  the  verdict  was 
set  aside  upon  the  defendant's  motion,  United  States  v.  Ball,  163 
U.  S.  662,  672;  nor  does  the  provision  of  the  same  article  that  no 
one  shall  be  a  witness  against  himself  impair  his  obligation  to  testify, 
if  a  prosecution  against  hun  be  barred  by  the  lapse  of  time,  a  pardon 
or  by  statutory  enactment.     Brown  v.  Walker,  161  U.  S.  591,  and 
cases  cited.     Nor  does  the  provision  that  an  accused  person  shall 
be  confronted  with  the  witnesses  against  him  prevent  the  achnission 
of  dying  declarations,  or  the  depositions  of  witnesses  who  have 
died  since  the  former  trial. 

The  prohibition  of  slavery,  in  the  Thirteenth  Amendment,  is 
well  known  to  have  been  adopted  with  reference  to  a  state  of 
affairs  which  had  existed  in  certain  States  of  the  Union  since  the 
foundation  of  the  government,  while  the  addition  of  the  words 
"  involuntary  servitude  "  was  said  in  the  Slaughter  House  Cases, 
16  \Yall.  36,  to  have  been  intended  to  cover  the  system  of  Mexican 
peonage  and  the  Chinese  coolie  trade,  the  practical  operation  of 
which  might  have  been  a  revival  of  the  institution  of  slavery  under 
a  different  and  less  offensive  name.     It  is  clear,  however,  that  the 
amendment  was  not  intended  to  introduce  any  novel  doctrine  with 
respect  to  certain  descriptions  of  service  which  have  always  been 
treated  as  exceptional;  such  as  military  and  naval  enlistments,  or 
to  disturb  the  right  of  parents  and  guardians  to  the  custody  of 
their  minor  children  or  wards.     The  amendment,  however,  makes 
no  distinction  between  a  public  and  a  private  service.      To  say 
that  persons  engaged  in  a  pubUc  service  are  not  within  the  amend- 
ment is  to  admit  that  there  are  exceptions  to  its  general  language, 
and  the  further  question  is  at  once  presented,  where  shall  the  line 
be  drawn  ?     We  know  of  no  better  answer  to  make  than  to  say 


512  SLAVERY   AND   INVOLUNTARY   SERVITUDE. 

that  services  which  have  from  time  immemorial  been  treated  as 
exceptional  shall  not  be  regarded  as  within  its  purview. 

From  the  earliest  historical  period  the  contract  of  the  sailor  has 
been  treated  as  an  exceptional  one,  and  involving,  to  a  certain 
extent,  the  surrender  of  his  personal  liberty  during  the  life  of  the 
contract.  Indeed,  the  business  of  navigation  could  scarcely  be 
carried  on  without  some  guaranty,  beyond  the  ordinary'  civil 
remedies  upon  contract,  that  the  sailor  will  not  desert  the  ship  at  a 
critical  moment,  or  leave  her  at  some  place  where  seamen  are 
impossible  to  be  obtained  —  as  Molloy  forcibly  expresses  it,  "  to 
rot  in  her  neglected  brine."  Such  desertion  might  involve  a  long 
delay  of  the  vessel  while  the  master  is  seeking  another  crew,  an 
abandonment  of  the  voyage,  and,  in  some  cases,  the  safety  of  the 
ship  itself.  Hence,  the  laws  of  nearly  all  maritime  nations  have 
made  provision  for  securing  the  personal  attendance  of  the  crew 
on  board,  and  for  their  criminal  i)unishment  for  desertion,  or 
absence  Avithout  leave  during  the  life  of  the  shipping  articles.  .  .  . 

Malynes,  the  earliest  English  writer  upon  the  Law  Merchant, 
who  wrote  in  1622,  says  in  his  Lex  Meraitoria  (vol.  I,  chap.  23), 
that  "  mariners  in  a  strange  port,  should  not  leave  the  ship  without 
the  master's  license,  or  fastening  her  with  four  ropes,  or  else  the  loss 
falls  upon  them.  ...  In  a  strange  country,  the  one  half  of  the 
company  at  the  least,  ought  to  remain  on  shipboard,  and  the  rest 
who  go  on  land  should  keep  sobriety  and  abstain  from  suspected 
places,  or  else  should  be  punished  in  body  and  purse:  like  as 
he  who  absents  himself  when  the  ship  is  ready  to  sail.  Yea,  if  he 
give  out  himself  worthier  than  he  is  in  his  calling,  he  shall  lose 
his  hire;  half  to  the  athniral,  and  the  other  half  to  the  master." 
Molloy,  one  of  the  most  satisfactory  of  early  English  writers  upon 
the  subject,  states  that  if  seamen  depart  from  a  ship  without  leave 
or  license  of  the  master,  and  any  disaster  happens,  they  must 
answer,  quoting  Art.  V  of  the  Rules  of  Oleron  in  support  of  his 
proposition. 

There  appears  to  have  been  no  legislation  directly  upon  the  sub- 
ject until  1729,  when  the  act  of  2  Geo.  II,  c.  36,  was  enacted  "  for 
the  better  regulation  and  government  of  seamen  in  the  merchants' 
service."  This  act  not  only  provided  for  the  forfeiture  of  wages 
in  case  of  desertion,  but  for  the  apprehension  of  seamen  deserting 
or  absenting  themselves,  upon  warrants  to  be  issued  by  justices  of 
the  peace,  and,  in  case  of  their  refusal,  to  proceed  upon  the  voyage, 
for  their  committal  to  the  house  of  correction  at  hard  labor. 
Indeed,  this  seems  to  have  furnished  a  model  upon  which  the  act 


CLYATT   V.    UNITED    STATES.  '  513 

of  Congress  of  July  20,  1790  (1  Stat.  131),  for  the  government  and 
regulation  of  seamen  in  the  merchants'  service,  was  constructed.  .  .  . 

The  earliest  American  legislation  which  we  have  been  able  to 
find,  is  an  act  of  the  Colonial  General  Court  of  Massachusetts, 
passed  about  1668,  wherein  it  was  enacted  that  any  mariner  who 
departs  and  leaves  a  voyage  upon  which  he  has  entered,  shall  for- 
feit all  his  wages,  and  shall  be  further  punished  by  imprisonment  or 
other^\ise,  as  the  case  may  be  circumstanced;  and  if  he  shall  have 
received  any  considerable  part  of  his  wages,  and  shall  run  away,  he 
shall  be  pursued  as  a  disobedient  runaway  servant.  Mass.  Col. 
Laws  (ed.  1889),  251,  256. 

The  provision  of  Rev.  Stat.  §  4598,  under  which  these  proceed- 
ings were  taken,  was  first  enacted  by  Congress  in  1790.  1  Stat. 
131,  §  7.  This  act  provided  for  the  apprehension  of  deserters  and 
their  delivery  on  board  the  vessel,  but  apparently  made  no  pro- 
vision for  imprisonment  as  a  punishment  for  desertion.  .  .  . 

In  the  face  of  this  legislation  upon  the  subject  of  desertion  and 
absence  without  leave,  which  was  in  force  in  this  country  for  more 
than  sixty  years  before  the  Thirteenth  Amendment  was  adopted, 
and  similar  legislation  abroad  from  time  immemorial,  it  cannot  be 
open  to  doubt  that  the  provision  against  involuntary  servitude  was 
never  intended  to  apply  to  their  contracts. 

The  judgment  of  the  court  below  is,  therefore.  Affirmed.^ 

HARL.AiNf,  J.,  dissenting.  .  .  . 

Gray,  J.,  was  not  present  at  the  argimaent,  and  took  no  part  in 
the  decision  of  this  case. 


CLYATT   V.   UNITED   STATES. 

Supreme  Court  of  the  United  States.     1905. 

[197  United  Slates,  207.]  2 

Certiorari  to  the  Circuit  Court  of  Appeals  for  the  Fifth  Circuit. 

Clyatt  was  indicted  in  the  Circuit  Court  of  the  United  States  for 
the  Northern  District  of  Florida  for  returning  two  persons  to  a 
condition  of  peonage  by  forcibly  and  against  their  will  returning 
them  to  work  for  a  firm  in  which  he  was  a  partner,  in  order  to 

1  As  to  seamen  of  foreign  vessels,  see  Tucker  v.  Alexandroff,  183  U.  S.  424 
<1902).  — Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


514  SLAVERY    AND    INVOLUNTARY    SERVITUDE. 

work  out  a  debt  claimed  to  be  due  the  firm,  contrary  to  the  statutes 
of  the  United  States  (R.  S.  sees.  1990  and  5520)  providing  that 
peonage  is  abolished  and  prohibited  in  the  territories  and  states 
and  that  any  person  who  holds,  arrests,  or  returns  any  person  to  a 
condition  of  peonage  shall  be  punished  by  a  fine  of  not  less  than 
$1000,  nor  more  than  $5000,  or  by  imprisonment  not  less  than  one 
year  nor  more  than  five  years,  or  by  both.  After  verdict  of  guilty 
and  sentence  to  hard  labor  for  four  years,  the  case  was  taken  on 
appropriate  writ  to  the  Circuit  Court  of  Appeals,  whence  even- 
tually the  entire  record  was  brought  up  on  certiorari. 

W.  G.  Bradley  and  others,  for  plaintiff  in  error;  and  Attorney 
General  Moody  and  Asst.  Atty.  Gen.  Purdy,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

The  constitutionality  and  scope  of  sections  1990  and  5526  present 
the  first  questions  for  our  consideration.  They  prohibit  peonage. 
What  is  peonage  ?  It  may  be  defined  as  a  status  or  condition  of 
compulsory  service,  based  upon  the  indebtedness  of  the  peon  to  the 
master.  The  basal  fact  is  indebtedness.  As  said  by  Judge 
Benedict,  delivering  the  opinion  in  Jaremillo  v.  Romero,  1  N.  IMex. 
190,  194:  "  One  fact  existed  universally;  all  were  indebted  to  their 
masters.  This  was  the  cord  by  which  they  seemed  bound  to  their 
masters'  service."  Upon  this  is  based  a  condition  of  compulsory 
service.  Peonage  is  sometimes  classified  as  voluntary  or  involun- 
tary, but  this  implies  simply  a  difference  in  the  mode  of  origin,  but 
none  in  the  character  of  the  servitude.  The  one  exists  where  the 
debtor  voluntarily  contracts  to  enter  the  service  of  his  creditor. 
The  other  is  forced  upon  the  debtor  by  some  provision  of  law. 
But  peonage,  however  created,  is  compulsory  service,  involuntary 
servitude.  The  peon  can  release  himself  therefrom,  it  is  true,  by 
the  payment  of  the  debt,  but  otherwise  the  service  is  enforced.  A 
clear  distinction  exists  between  peonage  and  the  voluntary  per- 
formance of  labor  or  rendering  of  services  in  payment  of  a  debt. 
In  the  latter  case  the  debtor,  though  contracting  to  pay  his  in- 
debtedness by  labor  or  service,  and  subject  like  any  other  con- 
tractor to  an  action  for  damages  for  breach  of  that  contract,  can 
elect  at  any  time  to  break  it,  and  no  law  or  force  compels  per- 
formance or  a  continuance  of  the  service.  We  need  not  stop  to 
consider  any  possible  limits  or  exceptional  cases,  such  as  the  service 
of  a  sailor,  Robertson  v.  Baldwin,  165  U.  S.  275,  or  the  obligations  of 
a  child  to  its  parents,  or  of  an  apprentice  to  his  master,  or  the  powder 
of  the  legislature  to  make  unlawful  and  punish  criminally  an 
abandonment  by  an  employe  of  his  post  of  labor  in  any  extreme 


CLYATT   V.    UNITED    STATES.  515 

cases.  That  which  is  contemplated  by  the  statute  is  compulsory 
service  to  secure  the  payment  of  a  debt.  Is  this  legislation  within 
the  power  of  Congress  ?  It  may  be  conceded  as  a  general  prop- 
osition that  the  ordinary  relations  of  individual  to  individual  are 
subject  to  the  control  of  the  states  and  are  not  entrusted  to  the 
General  Govermnent,  but  the  Thirteenth  Amenchnent,  adopted  as 
an  outcome  of  the  civil  war,  reads : 

"  Sec.  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crmie  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to  their  jurisdiction. 

"  Sec.  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation." 

This  amendment  denounces  a  status  or  condition,  irrespective 
of  the  manner  or  authority  by  which  it  is  created.  The  prohibi- 
tions of  the  Fourteenth  and  Fifteenth  Amendments  are  largely 
upon  the  acts  of  the  states,  but  the  Thirteenth  Amendment  names 
no  party  or  authority,  but  simply  forl)ids  slavery  and  involuntary 
servitude,  grants  to  Congress  power  to  enforce  this  prohibition  by 
appropriate  legislation.  .  .  . 

It  is  not  open  to  doubt  that  Congress  may  enforce  the  Thirteenth 
Amendment  by  direct  legislation,  punishing  the  holding  of  a  person 
in  slavery  or  in  involuntary  servitude  except  as  a  punishment  for 
crime.  In  the  exercise  of  that  power  Congress  has  enacted  these 
sections  denouncing  peonage,  and  punishing  one  who  holds  an- 
other in  that  condition  of  involuntary  servitude.  This  legislation 
is  not  limited  to  the  Territories  or  other  parts  of  the  strictly  Na- 
tional domain,  but  is  operative  in  the  states  and  wherever  the 
sovereignty  of  the  United  States  extends.  We  entertain  no  doubt 
of  the  validity  of  this  legislation,  or  of  its  applicability  to  the  case 
of  any  person  holding  another  in  a  state  of  peonage,  and  this 
whether  there  be  municipal  ordinance  or  state  law  sanctioning 
such  holding.  It  operates  directly  on  every  citizen  of  the  Republic, 
wherever  his  residence  may  be.  .  .  . 

The  indictment  charges  that  the  defendant  did  "  unla^^'fully  and 
knowingly  return  one  Will  Gordon  and  one  Mose  Ridley  to  a 
condition  of  peonage."  .  .  . 

It  was  essential,  therefore,  ...  to  show  that  Gordon  and 
Ridley  had  been  in  a  condition  of  peonage,  to  which,  by  the  act  of 
the  defendant,  they  were  returned.  .  .  . 

The  testimony  discloses  that  the  defendant  vnth  another  party 
went  to  Florida  and  caused  the  arrest  of  Gordon  and  Ridley  on 


516  SLAVERY   AND    INVOLUNTARY   SERVITUDE. 

warrants  issued  by  a  magistrate  in  Georgia  for  larceny,  but  there 
can  be  little  doubt  that  these  criminal  proceedings  were  only  an 
excuse  for  securing  the  custody  of  Clordon  and  Ridley  and  taking 
them  back  to  Georgia  to  work  out  a  debt.  At  any  rate,  there  was 
abundant  testimony  from  which  the  jury  could  find  that  to  have 
been  the  fact.  While  this  is  true,  there  is  not  a  scintilla  of  testi- 
mony to  show  that  Gordon  and  Ridley  were  ever  theretofore  in  a 
condition  of  peonage.  That  they  were  in  de})t  antl  that  they  had 
left  Georgia  and  gone  to  Florida  without  paying  that  tlebt,  does  not 
show  that  they  had  been  held  in  a  condition  of  peonage,  or  were 
ever  at  work  willingly  or  unwillingly  for  their  creditor.  We  have 
examined  the  testimony  with  great  care  to  see  if  there  was  any- 
thing which  would  justify  a  finding  of  the  fact,  and  can  find  noth- 
ing. ... 

We  are  constrained,  therefore,  to  order  a  reversal  of  the  judg- 
ment, and  remand  the  case  for  a  new  trial. 

McKenna,  J.,  concurs  in  the  judgment. 

Harlan,  J.  I  concur  v^-ith  my  brethren  in  holding  that  the 
statutes  in  question  relating  to  peonage  are  valid  under  the  Con- 
stitution of  the  United  States.  I  agree  also  that  the  record 
sufficiently  shows  that  it  contains  all  the  evidence  introduced  at 
the  trial. 

But  I  cannot  agree  in  holding  that  the  trial  court  erred  in  not 
taking  the  case  from  the  jury.  Without  going  into  the  details  of 
the  evidence,  I  care  only  to  say  that,  in  my  opinion,  there  was 
evidence  tending  to  make  a  case  within  the  statute. 


HODGES  V.   UNITED  STATES. 
Supreme  Court  of  the  United  States.     1906. 

[203  United  States,  1.]  ^ 

Error  to  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Arkansas. 

Hodges  and  two  others  were  indicted  for  conspiring  to  oppress 
certain  persons,  described  as  citizens  of  the  United  States  of 
African  descent,  in  the  free  exercise  of  rights  secured  by  the  Con- 
stitution and  laws  of  the  United  States.     The  indictment  averred 

1  An  abbreviated  statement  has  been  presented.  —  Ed. 


HODGES    V.    UNITED    STATES.  517 

that  the  defendants  thus  conspired  because  these  persons  had  made 
contracts  to  serve  as  laborers  for  certain  manufacturers  of  lumber 
and  were  to  receive  compensation,  the  same  being  a  right  conferred 
upon  them  by  the  Thirteenth  Amendment  and  the  laws  passed  in 
pursuance  thereof,  and  being  a  right  similar  to  that  enjoyed  by  the 
white  citizens  of  the  same  state.  The  indictment  averred  also  that 
while  these  citizens  of  African  descent  were  in  the  enjoj'ment  of 
this  right  the  defendants  unlawfully  conspired  to  intimidate  them 
in  the  enjoyment  of  it,  and,  because  they  had  exercised  it  and 
because  they  were  citizens  of  African  descent,  notified  them  that 
they  must  abandon  their  contracts  and  work,  and  threatened  to 
injure  them  if  they  did  not  do  so,  and  unlawfull}'  moved  in  a  body 
to  and  against  the  place  of  business  while  these  persons  were 
engaged  thereat,  the  defendants  being  then  and  there  armed  with 
deadly  weapons,  threatening  and  intimidating  these  workmen  for 
the  purpose  of  compelling  them  to  stop  work. 

The  indictment  was  under  certain  provisions  in  the  Revised 
Statutes  of  the  United  States,  nameh':  Sec.  1977,  saying  that 
**  All  persons  ^^^thin  the  jurisdiction  of  the  United  States  shall  have 
the  same  right  in  every  State  and  Territory  to  make  and  enforce 
contracts,  ...  as  is  enjoj-ed  by  white  persons;  "  and  Sec.  5508, 
sa3'ing  that  "  If  two  or  more  persons  conspire  to  injure,  oppress 
threaten,  or  intimidate  any  citizen  in  the  free  exercise  of  any 
right  or  privilege  secured  to  him  by  the  Constitution  or  laws  of  the 
United  States,  or  because  of  his  having  so  exercised  the  same;  .  .  . 
they  shall  be  fined  not  more  than  $5000  and  imprisoned  not  more 
than  ten  years;  and  shall,  moreover,  be  thereafter  ineligible  to 
an}'  office,  or  place  of  honor,  profit,  or  trust  created  by  the  Con- 
stitution or  laws  of  the  United  States." 

There  was  a  demurrer  to  the  indictment,  on  the  ground  that  the 
offense  created  by  the  statutes  was  not  within  the  jurisdiction  of 
the  courts  of  the  United  States,  but  was  cognizable  by  state 
tribunals  only.  The  demurrer  was  overruled;  and  the  defendants 
were  found  guilty  and  were  sentenced.  There  being  constitutional 
questions  involved,  the  judgment  was  brought  directly  to  the 
Supreme  Court  by  WTit  of  error. 

/.  P.  Clarke  and  others,  for  plaintiffs  in  error;  and  W.  H.  Moody, 
Attorney  General,  and  others,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

That  prior  to  the  three  post  helium  Amendments  to  the  Constitu- 
tion the  National  Govermnent  had  no  jurisdiction  over  a  wrong 
like  that  charged  in  this  indictment  is  conceded;   that  the  Four- 


518  SLAVERY    AND    INVOLUNTARY   SERVITUDE. 

teenth  and  Fifteenth  Amendments  do  not  justify  the  legislation 
is  also  beyond  dispute,  for  they,  as  repeatedly  held,  are  restric- 
tions upon  state  action,  and  no  action  on  the  part  of  the  State 
is  complained  of.  Unless,  therefore,  the  Thirteenth  Amendment 
vests  in  the  Nation  the  jurisdiction  claimed  the  remedy  must  be 
sought  through  state  action  and  in  state  tribunals  subject  to  the 
supervision  of  this  court  by  writ  of  error  in  proper  cases.  . 

The  things  denounced  are  slavery  and  involuntary  servitude,  and 
Congress  is  given  power  to  enforce  that  denunciation.     All  under- 
stand by  these  terms  a  condition  of  enforced  compulsory  service 
of  one  to  another.     While  the  inciting  cause  of  the  Amendment  was 
the  emancipation  of  the  colored  race,  yet  it  is  not  an  attempt  to 
commit  that  race  to  the  care  of  the  Nation.     It  is  the  denuncia- 
tion of  a  condition  and  not  a  declaration  in  favor  of  a  particular 
people.     It  reaches  every  race  and  every  individual,  and  if  in  any 
respect  it  commits  one  race  to  the  Nation  it  commits  every  race 
and  every  individual  thereof.      Slavery  or  involuntary  servitude 
of  the  Chinese,  of  the  Italian,  of  the  Anglo-Saxon  are  as  much 
within  its  compass  as  slavery  or  involuntary  servitude  of  the 
African.     Of  this  Amendment  it  was  said  by  Mr.  Justice  Miller  in 
Slaughter-House  Cases,  16  Wall.  36,  69,  "  Its  two  short  sections 
seem  hardly  to  admit  of  construction."     And  again:    "  To  with- 
draw the  mind  from  the  contemplation  of  this  grand  yet  simple 
declaration  of  the  personal  freedom  of  all  the  human  race  within 
the  jurisdiction  of  this  Government  .  .  .  requires  an  effort,  to  say 
the  least  of  it." 

A  reference  to  the  definitions  in  the  dictionaries  of  words  whose 
meaning  is  so  thoroughly  understood  by  all  seems  an  affectation, 
yet  in  Webster  "  slavery  "  is  defined  as  "  the  state  of  entire  sub- 
jection of  one  person  to  the  will  of  another."  Even  the  secondary 
meaning  given  recognizes  the  fact  of  subjection,  as  "  one  who  has 
lost  the  power  of  resistance;  one  who  surrenders  himself  to  any 
power  whatever;  as  a  slave  to  passion,  to  lust,  to  strong  drink,  to 
ambition,"  and  "  servitude  "  is  by  the  same  authority  declared  to 
be  "  the  state  of  voluntary  or  compulsory  subjection  to  a  master." 
It  is  said,  however,  that  one  of  the  disabilities  of  slavery,  one  of 
the  indicia  of  its  existence,  was  a  lack  of  power  to  make  or  perform 
contracts,  and  that  when  these  defendants,  by  intimidation  and 
force,  compelled  the  colored  men  named  in  the  indictment  to  desist 
from  performing  their  contract  they  to  that  extent  reduced  those 
parties  to  a  condition  of  slavery,  that  is,  of  subjection  to  the  will  of 
defendants,  and  deprived  them  of  a  freeman's  power  to  perforn? 


HODGES   V.   UNITED    STATES.  519 

his  contract.  But  every  wTong  done  to  an  individual  by  another, 
acting  singly  or  in  concert  with  others,  operates  pro  tanto  to  abridge 
some  of  the  freedom  to  which  the  individual  is  entitled.  A  free- 
man has  a  right  to  be  protected  in  his  person  from  an  assault  and 
battery.  He  is  entitled  to  hold  his  property  safe  from  trespass  or 
appropriation,  but  no  mere  personal  assault  or  trespass  or  appro- 
priation operates  to  reduce  the  incUvidual    to    a    condition    of 

slavery.  .  .  . 

But  that  it  was  not  the  intent  of  the  Amendment  to  denounce 
everj'  act  done  to  an  individual  which  was  ^\Tong  if  done  to  a  free 
man  and  yet  justified  in  a  condition  of  slavery,  and  to  give  au- 
thority to  Congress  to  enforce  such  denunciation,  consider  the 
legislation  in  respect  to  the  Chinese.      In  slave  times  in  the  slave 
States  not  infrequently  every  free  Negro  was  required  to  carry 
vnth  him  a  copy  of  a  judicial  decree  or  other  evidence  of  his  right 
to  freedom  or  be  subject  to  arrest.     That  was  one  of  the  incidents 
or  badges  of  slavery.     By  the  act  of  May  5,  1892,  Congress  re- 
quired all  Chinese  laborers  within  the  limits  of  the  United  States  to 
apply  for  a  certificate,  and  any  one  who  after  one  year  from  the 
passage  of  the  act  should  be  found  \Nathin  the  jurisdiction  of  the 
United  States  without  such  certificate,  might  be  arrested  and 
deported.     In  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698,  the 
validity  of  the  Chinese  deportation  act  was  presented,  elaborately 
argued,  and  fully  considered  by  this  court.      While  there  was  a 
division  of  opinion,  yet  at  no  time  during  the  progress  of  the  litiga- 
tion, and  by  no  individual,  counsel,  or  court  connected  with  it,  was 
it  suggested  that  the  requiring  of  such  a  certificate  was  evidence  of 
a  condition  of  slavery  or  prohibited  by  the  Thirteenth  Amend- 
ment. 

One  thing  more:  At  the  close  of  the  civil  war,  when  the  problem 
of  the  emancipated  slaves  was  before  the  Nation,  it  might  have 
left  them  in  a  condition  of  alienage,  or  established  them  as  wards 
of  the  Government  like  the  Indian  tribes,  and  thus  retained  for 
the  Nation  jurisdiction  over  them,  or  it  might,  as  it  did,  give  them 

citizenship.  .  .  . 

For  these  reasons  we  think  the  United  States  court  had  no 
jurisdiction  of  the  wrong  charged  in  the  indictment. 

The  judgments  are  reversed,  and  the  case  remanded  with  instruc- 
tions to  sustain  the  demurrer  to  the  indictment. 

Bro-^-n,  J.,  concurs  in  the  judgments. 

Harlan,  J.,  with  whom  concurs  Day,  J.,  dissenting.  .  .  . 


520  SLAVERY   AND    INVOLUNTARY    SERVITUDE. 

BAILEY   V.   ALABAMA. 

Supreme  Court  of  the  United  States.     19 IL 

[219  United  States,  219.]  > 

Error  to  the  Supreme  Court  of  Alabama. 

In  the  Montgomery  City  Court  Bailey  was  convicted  under 
§  4730  of  the  Code  of  Alabama  of  1896,  as  amended  in  1903  and 
1907,  which  provided  that  any  person  who  with  intent  to  injure  or 
defraud  his  employer  entered  into  a  written  contract  for  service 
and  thereby  obtained  from  his  employer  money  or  other  personal 
property,  and,  with  like  intent  and  without  just  cause  and  without 
refunding  the  money  or  paying  for  the  property,  refused  to  perform 
the  service,  must  on  conviction  be  punished  by  a  fine  in  double 
the  damage  suffered,  but  not  more  than  $300,  one-half  to  go  to  the 
county  and  one-half  to  the  person  injured,  and  that  the  refusal  or 
failure  to  perform  such  service  or  refund  such  money  or  pay  for 
such  property  without  just  cause  should  be  prima  facie  evidence  of 
the  intent.  There  was  also  a  rule  of  evidence  in  the  Alabama  courts 
forbidding  the  accused,  for  the  purpose  of  rebutting  the  statu- 
tory presumption,  to  testify  as  to  his  uncommunicated  intention. 
Bailey  had  entered  into  a  written  contract  to  work  as  a  farm  hand 
for  one  year,  at  $12  a  month,  and  he  received  $15  in  advance. 
After  working  for  a  month  and  three  or  four  days  he  refused  to 
serve  further.  No  other  evidence  was  introduced.  The  court 
charged  the  jury  in  the  terms  of  the  statute,  though  requested  to 
charge  that  the  statute  and  the  provision  creating  the  presumption 
were  invalid.  Exceptions  were  taken.  The  jury  found  the 
accused  guilty  and  assessed  a  fine  of  $30.  Thereupon  Bailey  was 
sentenced  to  a  fine  of  $30  and  the  costs,  and  in  default  to  hard 
labor  "  for  twenty  days  in  lieu  of  said  fine  and  one  hundred  and 
sixteen  days  on  account  of  said  costs."  On  appeal  to  the  Supreme 
Court  of  the  state,  the  constitutionality  of  the  statute  was  upheld 
and  the  judgment  affirmed  (161  Ala.  75). 

F.  J.  Ball  and  others,  for  plaintiff  in  error;  Harr,  Asst.  Atty. 
Gen.,  on  behalf  of  the  United  States,  as  amicus  curiae;  and  A.  M. 
Garher,  Attorney  General  of  Alabama,  and  another,  contra. 

Hughes,  J.,  delivered  the  opinion  of  the  court.  .  . 

Under  the  statute  there  is  no  punishment  for  the  alleged  fraud 
if  the  service  is  performed  or  the  money  refunded.     If  the  service 
is  rendered  in  liquidation  of  the  debt  there  is  no  punishment,  and 
1  A  statemect  hu  been  framed  up':  i;  the  opinion.  —  Ed. 


BAILEY   V.    ALABAMA.  ^21 


if  it  is  not  rendered  and  the  money  is  not  refunded  that  fact  alone 
is  sufficient  for  conviction.  ... 

We  cannot  escape  the  conclusion  that,  although  the  statute  in 
terms  is  to  punish  fraud,  still  its  natural  and  ine\'itable  effect  is  to 
expose  to  conviction  for  crime  those  who  sunply  fail  or  refuse  to 
perform  contracts  for  personal  service  in  liquidation  of  a  debt,  and 
judging  its  purpose  by  its  effect  that  it  seeks  in  this  way  to  provide 
the  means  of  compulsion  through  which  performance  of  such  ser- 
\dce  may  be  secured.  The  question  is  whether  such  a  statute  is 
constitutional.  ... 

In  the  present  case  it  is  urged  that  the  statute  as  amended, 
through  the  operation  of  the  presumption  for  which  it  provides, 
violates  the  Thirteenth  Amendment  of  the  Constitution  of  the 
United  States  and  the  act  of  Congress  passed  for  its  enforce- 
ment. .  .  . 

The  language  of  the  Thirteenth  Amendment  was  not  new. 
It  reproduced  the  historic  words  of  the  ordinance  of  1787  for  the 
government  of  the  Northwest  Territory  and  gave  them  unrestricted 
application  within  the  United  States  and  all  places  subject  to  their 
juriscUction.  While  the  immediate  concern  was  with  African 
slavery,  the  Amendment  was  not  limited  to  that.  It  was  a  charter 
of  universal  c\xi\  freedom  for  all  persons,  of  whatever  race,  color  or 
estate,  under  the  flag. 

The  words  involuntary  servitude  have  a  "  larger  meaning  than 
slavery."  ''  It  was  very  well  understood  that  in  the  form  of 
apprenticeship  for  long  terms,  as  it  had  been  practised  in  the  West 
India  Islands,  on  the  abolition  of  slavery  by  the  English  govern- 
ment, or  bv  reducing  the  slaves  to  the  condition  of  serfs  attached 
to  the  plantation,  the  purpose  of  the  article  might  have  been 
evaded,  if  only  the  word  slavery  had  been  used."  Slaughter 
House  Cases,  16  Wall.  p.  69.  .  .  . 

While  the  Amendment  was  self-executing,  so  far  as  its  terms 
were  applicable  to  any  existing  condition,  Congress  was  au- 
thorized   to    secure    its    complete    enforcement    by    appropriate 

legislation.  ... 

The  act  of  March  2,  1867  (Rev.  Stat.,  §§  1990,  5526,  suvra),  was 
a  valid  exercise  of  this  express  authority.  Clyatt  v.  United  States, 
197  U.  S.  207.  It  declared  that  all  laws  of  any  state,  by  virtue  of 
which  any  attempt  should  be  made  "  to  establish,  maintain,  or 
enforce,  directly  or  indirectly,  the  voluntary-  or  involuntary-  service 
or  labor  of  any  persons  as  peons,  in  liquidation  of  any  debt  or 
obligation,  or  otherwise,"  should  be  null  and  void.  .  .  . 


522  SLAVERY   AND    INVOLUNTARY    SERVITUDE. 

The  fact  that  the  debtor  contracted  to  perform  the  labor  which 
is  sought  to  be  compelled  does  not  withdraw  the  attempted  en- 
forcement from  the  condemnation  of  the  statute.  The  full  intent 
of  the  constitutional  provision  could  be  defeated  with  obvious 
faciUty  if,  through  the  guise  of  contracts  under  which  advances 
had  been  made,  debtors  could  be  held  to  compulsory  service.  It 
is  the  compulsion  of  the  service  that  the  statute  inhibits,  for  when 
that  occurs  the  condition  of  servitude  is  created,  which  would  be 
not  less  involuntary  because  of  the  original  agreement  to  work  out 
the  indebtedness.  The  contract  exposes  the  debtor  to  liability 
for  the  loss  due  to  the  breach,  but  not  to  enforced  labor.  This  has 
been  so  clearly  stated  by  this  court  in  the  case  of  Clyatt,  supra, 
that  discussion  is  unnecessary.  .  .  . 

The  act  of  Congress,  nullifying  all  state  laws  by  which  it  should 
be  attempted  to  enforce  the  "  service  or  labor  of  any  persons  as 
peons,  in  liquidation  of  any  debt  or  obligation,  or  otherwise," 
necessarily  embraces  all  legislation  which  seeks  to  compel  the 
service  or  labor  by  making  it  a  crime  to  refuse  or  fail  to  perform  it. 
Such  laws  would  furnish  the  readiest  means  of  compulsion.  The 
Thirteenth  Amendment  prohibits  involuntarj'^  servitude  except  as 
punishment  for  crime.  But  the  exception,  allo\Aing  full  latitude 
for  the  enforcement  of  penal  laws,  does  not  destroy  the  prohibition. 
It  does  not  permit  slavery  or  involuntary  servitude  to  be  estab- 
lished or  maintained  through  the  operation  of  the  criminal  law  by 
making  it  a  crime  to  refuse  to  submit  to  the  one  or  to  render  the 
service  which  would  constitute  the  other.  The  State  may  impose 
involuntary  servitude  as  a  punishment  for  crime,  but  it  may  not 
compel  one  man  to  labor  for  another  in  payment  of  a  debt,  by 
punishing  him  as  a  criminal  if  he  does  not  perform  the  service  or 
pay  the  debt. 

If  the  statute  in  this  case  had  authorized  the  employing  company 
to  seize  the  debtor  and  hold  him  to  the  service  until  he  paid  the 
fifteen  dollars,  or  had  furnished  the  equivalent  in  labor,  its  invalid- 
ity would  not  be  questioned.  It  would  be  equally  clear  that  the 
State  could  not  authorize  its  constabulary  to  prevent  the  servant 
from  escaping  and  to  force  him  to  work  out  his  debt.  But  the 
State  could  not  avail  itself  of  the  sanction  of  the  criminal  law  to 
supply  the  compulsion  any  more  than  it  could  use  or  authorize 
the  use  of  physical  force.  "  In  contemplation  of  the  law  the  com- 
pulsion to  such  service  by  the  fear  of  punishment  under  a  criminal 
statute  is  more  powerful  than  any  guard  which  the  employer 
could  station."     Ex  parte  Hollman  (S.  Car.),  60  S.  E.  Rep.  24. 


BAILEY   V.    ALABAMA.  523 

What  the  State  may  not  do  directly  it  may  not  do  indirectly. 
If  it  cannot  punish  the  servant  as  a  criminal  for  the  mere  failure 
or  refusal  to  serve  without  paying  his  debt,  it  is  not  permitted  to 
accomphsh  the  same  result  by  creating  a  statutory-  presumption 
which  upon  proof  of  no  other  fact  exposes  him  to  conviction  and 
punishment.  Without  imputing  any  actual  motive  to  oppress,  we 
must  coiLsider  the  natural  operation  of  the  statute  here  in  question 
(Henderson  v.  ]\Iayor,  92  U.  S.  p.  268),  and  it  is  apparent  that  it 
furnishes  a  convenient  instrument  for  the  coercion  which  the 
Constitution  and  the  act  of  Congress  forbid;  an  instrument  of 
compulsion  peculiarly  effective  as  against  the  poor  and  the  ignor- 
ant, its  most  likely  victims.  There  is  no  more  miportant  concern 
than  to  safeguard  the  freedom  of  labor  upon  which  alone  can 
enduring  prosperity  be  based.  The  provisions  designed  to  secure 
it  would  soon  become  a  barren  form  if  it  were  possible  to  establish  a 
statutory  presumption  of  this  sort  and  to  hold  over  the  heads  of 
laborers  the  threat  of  punishment  for  crime,  under  the  name  of 
fraud  but  merely  upon  evidence  of  failure  to  work  out  their  debts. 
The  act  of  Congress  deprives  of  effect  all  legislative  measures  of  any 
state  through  which  chrectly  or  indirectly  the  prohibited  thing,  to 
wit,  compulsory^  ser\ace  to  secure  the  payment  of  a  debt  may  be 
established  or  maintained;  and  we  conclude  that  §4730,  as 
amended,  of  the  Code  of  Alabama,  in  so  far  as  it  makes  the  refusal 
or  failure  to  perform  the  act  or  service,  without  refunding  the 
money  or  paying  for  the  property  received,  -privia  facie  evidence  of 
the  commission  of  the  crime  which  the  section  defines,  is  in  conflict 
with  the  Thirteenth  Amenchnent  and  the  legislation  authorized  by 
that  Amendment,  and  is  therefore  invalid. 

In  this  view  it  is  unnecessary  to  consider  the  contentions  which 
have  been  made  under  the  Fourteenth  Amendment.  As  the  case 
was  given  to  the  jury  under  instructions  which  authorized  a  verchct 
in  accordance  with  the  statutory  presumption,  and  the  opposing 
instructions  requested  by  the  accused  were  refused,  the  judgment 
must  be  reversed. 

Reversed  and  cause  remanded  for  further  ^proceedings  not  inconsis- 
tent with  this  opinion.^ 

Holmes,  J.,  ^\^th  whom  concurred  Lurton,  J.,  dissenting.  .  .  . 

1  See  United  States  v.  Reynolds,  235  U.  S.  133  (1914).  —  Ed. 


CHAPTER  II. 

THE  FOURTEENTH  AMENDMENT  AND  KINDRED  TOPICS: 

CITIZENS  OF  THE  UNITED  STATES;  THEIR  PRIVILEGES 

OR  IMMUNITIES;  AND  DUE  PROCESS  OF  LAW  AND 

EQUAL   PROTECTION    OF   THE    LAWS. 

Section  I. 

Citizens  of  the  United  States  and  Some  of  their  Privileges  or 
Immunities. 

GASSIES  V.   BALLON. 

Supreme  Court  of  the  United  States.     18.S2. 

[6  Peters,  761.] 

Error  to  the  District  Court  of  the  United  States  for  the  Eastern 
District  of  Louisiana. 

This  case  came  before  the  district  court  of  the  eastern  district  of 
Louisiana,  on  a  petition  filed  in  November,  1829,  by  Jean  Gassies 
Ballon,  for  the  recovery  of  the  proceeds  of  certain  goods,  left  in  the 
hands  of  his  son,  Pierre  Gassies  for  sale,  and  for  a  balance  of  an 
account  arising  out  of  the  sale  of  the  said  goods,  and  other  transac- 
tions between  them. 

The  petitioner  described  himself  in  the  petition  as  a  resident  of 
the  city  of  Barsac,  and  a  French  citizen  of  the  kingdom  of  France, 
and  now  in  the  parish  of  Baton  Rouge,  intending  to  return  to 
France  as  soon  as  the  settlement  of  his  affairs  would  permit. 

The  defendant,  Pierre  Gassies  his  son,  was  described  "  as  now 
residing  in  the  parish  of  West  Baton  Rouge,  where  the  said  Pierre 
Gassies  caused  himself  to  be  naturalized  an  American  citizen." 

The  defendant  appeared  to  the  suit,  and  after  a  plea  of  no  cause 
of  action,  which  was  overruled  by  the  court,  the  cause  was  tried  by 
a  jury,  and  in  February,  1830,  a  verdict  was  rendered  for  the 
petitioner  for  three  thousand  one  hundred  dollars,  for  which  sum 
the  district  court  entered  judgment  in  his  favor. 

The  defendant  prosecuted  this  writ  of  error. 

The  case  was  argued  by  Mr.  Taney  for  the  plaintiff  in  error;  and 
by  Mr.  Key  for  the  defendant. 

524 


SLAUGHTER-HOUSE    CASES. 


525 


For  the  plaintiff  it  was  contended,  that  there  was  not  a  sufficient 
averment  in  the  pleadings,  that  Pierre  Gassies  was  a  citizen  of 
Louisiana,  so  as  to  sustain  the  jurisdiction  of  the  district  court  of 
the  United  States.  .  .  . 

Marshall,  C.  J.,  dehvered  the  opinion  of  the  court. 

In  this  case  the  court  is  of  opinion  that  the  jurisdiction  can  be 
sustained.  The  plaintiff  in  error  is  alleged  in  the  proceedings 
to  be  a  citizen  of  the  United  States,  naturalized  in  Louisiana,  and 
residing  there.  This  is  equivalent  to  an  averment  that  he  is  a 
citizen  of  that  state.  A  citizen  of  the  United  States,  residing  in 
any  state  of  the  union,  is  a  citizen  of  that  state.  .  .  . 

Judgment  affirmed. 


SLAUGHTER-HOUSE   CASES. 

Supreme  Court  of  the  United  States.     1873. 

[16  Wallace,  36.]  ^ 

Error  to  the  Supreme  Court  of  Louisiana. 

In  1869  the  legislature  of  Louisiana  passed  an  act  entitled:  "  An 
act  to  protect  the  health  of  the  City  of  New  Orleans,  to  locate  the 
stock  landings  and  slaughter-houses,  and  to  incorporate  '  The 
Crescent  City  Live-Stock  Landing  and  Slaughter-House  Com- 
pany.' "  The  act  gave  to  the  company  for  twenty-five  years  the 
exclusive  privilege  of  carrying  on  the  live-stock  landing  and 
slaughter-house  business  in  New  Orleans  and  of  having  slaughtered 
in  its  slaughter-house  all  animals  whose  meat  was  destined  for  sale 
in  the  city,  and  enacted  that  all  other  stock  landings  and  slaughter- 
houses be  closed,  under  a  penalty,  and  required  the  company,  at 
rates  fixed  in  the  act,  to  permit  owners  to  land  stock  at  its 
wharves  and  to  permit  butchers  to  slaughter  their  stock  in  its 
slaughter-house;  but  as  other  indi\aduals  and  companies  con- 
tinued to  maintain  other  landings  and  slaughter-houses,  the  com- 
pany created  by  the  statute  filed  against  them  respectively  petitions 
in  several  District  Courts  of  the  State,  pra}dng  injunctions.  The 
injunctions  were  made  perpetual;  and  on  appeal  to  the  Supreme 
Court  of  Louisiana  the  company's  contention  was  upheld.    There- 

»  A  new  statement  has  been  supplied,  with  the  aid  of  the  earlier  stage  of  the 
case  as  reported  in  10  Wall.  273  (1870).  —  Ed. 


520       CITIZENS   OF   THE    UNITED    STATES   AND    THEIR    PRIVILEGES. 

upon  writs  of  error  were  taken,  the  records  showing  that  through- 
out the  litigation  the  act  upon  which  the  company  rehed  had 
been  attacked  as  in  violation  of  the  thirteenth  and  fcurteenth 
articles  of  amendment  to  the  Constitution  of  the  United  States. 

John  A.  Campbell  and  J.  Q.  A.  Fellows,  for  plaintiffs  in  error; 
and  M.  H.  Carpenter,  J.  S.  Black,  and  others,  contra. 

Miller,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  . 

This  statute  is  denounced  not  only  as  creating  a  monopoly  and 
conferring  odious  and  exclusive  privileges  upon  a  small  number  of 
persons  at  the  expense  of  the  great  body  of  the  community  of  New 
Orleans,  but  it  is  asserted  that  it  deprives  a  large  and  meritorfous 
class  of  citizens  —  the  whole  of  the  butchers  of  the  city  —  of  the 
right  to  exercise  their  trade,  the  business  to  which  they  have  been 
trained  and  on  which  they  depend  for  the  support  of  themselves 
and  their  families;  and  that  the  unrestricted  exercise  of  the  business 
of  butchering  is  necessary  to  the  daily  subsistence  of  the  population 
of  the  city. 

But  a  critical  examination  of  the  act  hardly  justifies  these 
assertions.  .  .  . 

The  power  here  exercised  by  the  legislature  of  Louisiana  is,  in 
its  essential  nature,  one  which  has  been,  up  to  the  present  period  in 
the  constitutional  history  of  this  country,  always  conceded  to 
belong  to  the  States,  however  it  may  now  be  questioned  in  some 
of  its  details. 

"  Unwholesome  trades,  slaughter-houses,  operations  offensive 
to  the  senses,  the  deposit  of  powder,  the  application  of  steam  power 
to  propel  cars,  the  building  with  combustible  materials,  and  the  bur- 
ial of  the  dead,  may  all,"  says  Chancellor  Kent,  2  Commentaries, 
340,  "  be  interdicted  by  law,  in  the  midst  of  dense  masses  of 
population,  on  the  general  and  rational  principle,  that  every 
person  ought  so  to  use  his  property  as  not  to  injure  his  neighbors; 
and  that  private  interests  must  be  made  subservient  to  the  general 
interests  of  the  community."  This  is  called  the  police  power; 
and  it  is  declared  by  Chief  Justice  Shaw,  Commonwealth  v.  Alger, 
7  Cushing,  84,  that  it  is  much  easier  to  perceive  and  realize  the 
existence  and  sources  of  it  than  to  mark  its  boundaries,  or  pre- 
scribe limits  to  its  exercise.  .  .  . 

It  cannot  be  denied  that  the  statute  under  consideration  is  aptly 
framed  to  remove  from  the  more  densely  populated  part  of  the 
city,  the  noxious  slaughter-houses,  and  large  and  offensive  collec- 
tions of  animals  necessarily  incident  to  the  slaughtering  business 
of  a  large  city,  and  to  locate  them  where  the  convenience,  health, 


SLAUGHTER-HOUSE    CASES.  527 

and  comfort  of  the  people  require  they  shall  be  located.  And  it 
must  be  conceded  that  the  means  adopted  by  the  act  for  this  pur- 
pose are  appropriate,  are  stringent,  and  effectual.  .  .  . 

Unless,  therefore,  it  can  be  maintained  that  the  exclusive  priv- 
ilege granted  by  this  charter  to  the  corporation,  is  beyond  the 
power  of  the  legislature  of  Louisiana,  there  can  be  no  just  excep- 
tion to  the  validity  of  the  statute.  .  .  . 

The  great  Case  of  Monopolies,  reported  by  Coke,  and  so  fully 
stated  in  the  brief,  was  undoubtedly,  a  contest  of  the  commons 
against  the  monarch.  The  decision  is  based  upon  the  ground  that 
it  was  against  common  law,  and  the  argument  was  aimed  at  the 
unlawful  assumption  of  power  by  the  crown;  for  who  ever  doubted 
the  authority  of  Parliament  to  change  or  modify  the  common 
law  ?  .  .  . 

It  may,  therefore,  be  considered  as  established,  that  the  authority 
of  the  legislature  of  Louisiana  to  pass  the  present  statute  is  ample, 
unless  some  restraint  in  the  exercise  of  that  power  be  found  in  the 
constitution  of  that  State  or  in  the  amendments  to  the  Constitu- 
tion of  the  United  States,  adopted  since  the  date  of  the  decisions 
we  have  already  cited. 

If  any  such  restraint  is  supposed  to  exist  in  the  constitution  of  the 
State,  the  Supreme  Court  of  Louisiana  having  necessarily  passed 
on  that  question,  it  would  not  be  open  to  review  in  this  court. 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the  statute 
is  a  violation  of  the  Constitution  of  the  United  States  in  these 
several  particulars: 

That  it  creates  an  involuntary  servitude  forbidden  by  the 
thirteenth  article  of  amenchnent; 

That  it  abridges  the  privileges  and  immunities  of  citizens  of  the 
United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws; 
and, 

That  it  deprives  them  of  their  property  without  due  process  of 
law;  contrary  to  the  provisions  of  the  first  section  of  the  fourteenth 
article  of  amendment. 

This  court  is  thus  called  upon  for  the  first  tune  to  give  construc- 
tion to  these  articles.  .  .  . 

Twelve  articles  of  amendment  were  added  to  the  Federal 
Constitution  soon  after  the  original  organization  of  the  govern- 
ment under  it  in  1789.  Of  these  all  but  the  last  were  adopted  so 
soon  afterwards  as  to  justify  the  statement  that  they  were  practi- 
cally contemporaneous  ^vith  the  adoption  of  the  original;  and  the 


528       CITIZENS   OF   THE    UNITED    STATES    AND    THEIR    PUI VI LEGES. 

twelfth,  adopted  in  eighteen  hundred  and  three,  was  so  nearly  so 
as  to  have  become,  like  all  the  others,  historical  and  of  another  age. 
But  within  the  last  eight  years  three  other  articles  of  amenthnent  of 
vast  importance  have  been  added  by  the  voice  of  the  people  to  that 
now  venerable  instrument. 

The  most  cursory  glance  at  these  articles  discloses  a  unity  of 
purpose,  when  taken  in  connection  with  the  history  of  the  times, 
which  cannot  fail  to  have  an  important  bearing  on  any  question 
of  doubt  concerning  their  true  meaning.  Nor  can  such  doubts, 
when  any  reasonably  exist,  be  safely  and  rationally  solved  without 
a  reference  to  that  history;  for  in  it  is  found  the  occasion  and  the 
necessity  for  recurring  again  to  the  great  source  of  power  in  this 
country,  the  people  of  the  States,  for  additional  guarantees  of 
human  rights;  additional  powers  to  the  Federal  government; 
additional  restraints  upon  those  of  the  States.  .  .  . 

The  institution  of  African  slavery,  as  it  existed  in  about  half  the 
States  of  the  Union,  and  the  contests  pervading  the  public  mind 
for  many  years,  between  those  who  desired  its  curtailment  and 
ultimate  extinction  and  those  who  desired  additional  safeguards 
for  its  security  and  perpetuation,  culminated  in  the  effort,  on  the 
part  of  most  of  the  States  in  which  slavery  existed,  to  separate 
from  the  Federal  government,  and  to  resist  its  authority.  This 
constituted  the  war  of  the  rebellion,  and  whatever  auxiliary  causes 
may  have  contributed  to  bring  about  this  war,  undoubtedly  the 
overshadowing  and  efficient  cause  was  African  slavery. 

In  that  struggle  slavery,  as  a  legalized  social  relation,  per- 
ished. .  .  .  The  proclamation  of  President  Lincoln  expressed 
an  accomplished  fact  as  to  a  large  portion  of  the  insurrectionary 
districts,  when  he  declared  slavery  abolished  in  them  all.  But  the 
war  being  over,  those  who  had  succeeded  in  re-establishing  the 
authority  of  the  Federal  government  were  not  content  to  permit 
this  great  act  of  emancipation  to  rest  on  the  actual  results  of  the 
contest  or  the  proclamation  of  the  Executive,  both  of  which  might 
have  been  questioned  in  after  times,  and  they  determined  to  place 
this  main  and  most  valuable  result  in  the  Constitution  of  the 
restored  Union  as  one  of  its  fundamental  articles.  Hence  the 
thirteenth  article  of  amendment.  .  .  . 

To  withdraw  the  mind  from  the  contemplation  of  this  grand  yet 
simple  declaration  of  the  personal  freedom  of  all  the  human  race 
within  the  jurisdiction  of  this  government  —  a  declaration  de- 
signed to  establish  the  freedom  of  four  milhons  of  slaves  —  and 
with  a  microscopic  search  endeavor  to  find  in  it  a  reference  to 


SLAUGHTER-HOUSE   CASES.  529 

servitudes,  which  may  have  been  attached  to  property  in  certain 
locahties,  requires  an  effort,  to  say  the  least  of  it. 

That  a  personal  servitude  was  meant  is  proved  by  the  use  of  the 
word  "  involuntary,"  which  can  only  apply  to  human  beings. 
The  exception  of  servitude  as  a  punishment  for  crime  gives  an  idea 
of  the  class  of  servitude  that  is  meant.  .  .  . 

The  process  of  restoring  to  their  proper  relations  with  the  Federal 
government  and  with  the  other  States  those  which  had  sided  with 
the  rebellion,  undertaken  under  the  proclamation  of  President 
Johnson  in  1865,  and  before  the  assembling  of  Congress,  developed 
the  fact  that,  not^^^thstanding  the  formal  recognition  by  those 
States  of  the  abolition  of  slavery,  the  conchtion  of  the  slave  race 
would,  without -further  protection  of  the  Federal  government,  be 
almost  as  bad  as  it  was  before.  Among  the  first  acts  of  legislation 
adopted  by  several  of  the  States  in  the  legislative  bodies  which 
claimed  to  be  in  their  normal  relations  with  the  Federal  govern- 
ment, were  laws  which  imposed  upon  the  colored  race  onerous 
disabilities  and  burdens,  and  curtailed  their  rights  in  the  pursuit 
of  life,  liberty,  and  property  to  such  an  extent  that  their  freedom 
was  of  little  value,  while  they  had  lost  the  protection  which  they 
had  received  from  their  former  owners  from  motives  both  of  in- 
terest and  humanity. 

They  were  in  some  States  forbidden  to  appear  in  the  towTis  in  any 
other  character  than  menial  servants.  They  were  required  to 
reside  on  and  cultivate  the  soil  without  the  right  to  purchase  or 
own  it.  They  were  excluded  from  many  occupations  of  gain,  and 
were  not  permitted  to  give  testimony  in  the  courts  in  any  case 
where  a  white  man  was  a  party.  It  was  said  that  their  Uves  were 
at  the  mercy  of  bad  men,  either  because  the  laws  for  their  protec- 
tion were  insufficient  or  were  not  enforced. 

These  circumstances,  whatever  of  falsehood  or  misconception 
may  have  been  mingled  with  their  presentation,  forced  upon  the 
statesmen  who  had  conducted  the  Federal  government  in  safety 
through  the  crisis  of  the  rebellion,  and  who  supposed  that  by  the 
thirteenth  article  of  amendment  they  had  secured  the  result  of  their 
labors,  the  conviction  that  something  more  was  necessary  in  the 
way  of  constitutional  protection  to  the  unfortunate  race  who  had 
suffered  so  much.  They  accordingly  passed  through  Congress  the 
proposition  for  the  fourteenth  amendment,  and  they  declined  to 
treat  as  restored  to  their  full  participation  in  the  government  of  the 
Union  the  States  which  had  been  in  insurrection,  until  they  ratified 
that  article  by  a  formal  vote  of  their  legislative  bodies.  .  , 


530       CITIZENS   OF   THE   UNITED    STATES    AND    THEIR    PRIVILEGES. 

Notwithstanding  the  restraints  of  those  articles  on  the  States, 
and  the  laws  passed  under  the  additional  powers  granted  to  Con- 
gress, these  were  inadequate  for  the  protection  of  life,  liberty,  and 
property,  without  which  freedom  to  the  slave  was  no  boon.  They 
were  in  all  those  States  denied  the  right  of  suffrage.  The  laws  were 
administered  by  the  white  man  alone.  .  .  . 

Hence  the  fifteenth  amendment,  which  declares  that  "  the  right 
of  a  citizen  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  any  State  on  account  of  race,  color,  or  previous  con- 
dition of  servitude."  The  negro  having,  by  the  fourteenth  amend- 
ment, been  declared  to  be  a  citizen  of  the  United  States,  is  thus 
made  a  voter  in  every  State  of  the  Union.  .  .  . 

Both  the  language  and  spirit  of  these  articles  are  to  have  their 
fair  and  just  weight  in  any  question  of  construction.  Undoubtedly 
while  negro  slavery  alone  was  in  the  mind  of  the  Congress  which 
proposed  the  thirteenth  article,  it  forbids  any  other  kind  of  slavery, 
now  or  hereafter.  If  Mexican  peonage  or  the  Chinese  coolie 
labor  system  shall  develop  slavery  of  the  Mexican  or  Chinese  race 
within  our  territory,  this  amendment  may  safely  be  trusted  to  make 
it  void.  And  so  if  other  rights  are  assailed  by  the  States  which 
properly  and  necessarily  fall  within  the  protection  of  these  articles, 
that  protection  will  apply,  though  the  party  interested  may  not  be 
of  African  descent.  But  W'hat  we  do  say,  and  w^hat  we  wish  to  be 
understood  is,  that  in  any  fair  and  just  construction  of  any  section 
or  phrase  of  these  amendments,  it  is  necessary  to  look  to  the  pur- 
pose which  we  have  said  was  the  pervading  spirit  of  them  all,  the 
evil  which  they  were  designed  to  remedy,  and  the  process  of  con- 
tinued addition  to  the  Constitution,  until  that  purpose  was 
supposed  to  be  accomplished,  as  far  as  constitutional  law  can 
accomplish  it. 

The  first  section  of  the  fourteenth  article,  to  which  our  attention 
is  more  specially  invited,  opens  wdth  a  definition  of  citizenship  — 
not  only  citizenship  of  the  United  States,  but  citizenship  of  the 
States.  No  such  definition  was  previously  found  in  the  Constitu- 
tion, nor  had  any  attempt  been  made  to  define  it  by  act  of  Congress. 
It  had  been  the  occasion  of  much  discussion  in  the  courts,  by  the 
executive  departments,  and  in  the  public  journals.  It  had  been 
said  by  eminent  judges  that  no  man  was  a  citizen  of  the  United 
States,  except  as  he  was  a  citizen  of  one  of  the  States  composing  the 
Union.  Those,  therefore,  who  had  been  born  and  resided  alwaj'^s 
in  the  District  of  Columbia  or  in  the  Territories,  though  within  the 
United  States,  were  not  citizens.      Whether  this  proposition  was 


SLAUGHTER-HOUSE   CASES.  531 

sound  or  not  had  never  been  judicially  decided.  But  it  had  been 
held  by  this  court,  in  the  celebrated  Dred  Scott  case,  only  a  few 
years  before  the  outbreak  of  the  civil  war,  that  a  man  of  African 
descent,  whether  a  slave  or  not,  was  not  and  could  not  be  a  citizen 
of  a  State  or  of  the  United  States.  This  decision,  while  it  met  the 
condemnation  of  some  of  the  ablest  statesmen  and  constitutional 
lawyers  of  the  country,  had  never  been  overruled;  and  if  it  was  to 
be  accepted  as  a  constitutional  limitation  of  the  right  of  citizenship, 
then  all  the  negro  race  who  had  recently  been  made  freemen,  were 
still,  not  only  not  citizens,  but  w^ere  incapable  of  becoming  so  by 
anything  short  of  an  amendment  to  the  Constitution. 

To  remove  this  difficulty  primarily,  and  to  establish  a  clear  and 
comprehensive  definition  of  citizenship  which  should  declare  what 
should  constitute  citizenship  of  the  United  States,  and  also  citizen- 
ship of  a  State,  the  first  clause  of  the  first  section  was  framed. 

"  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside." 

The  first  observation  we  have  to  make  on  this  clause  is,  that  it 
puts  at  rest  both  the  questions  which  we  stated  to  have  been  the 
subject  of  differences  of  opinion.  It  declares  that  persons  may  be 
citizens  of  the  United  States  without  regard  to  their  citizenship  of  a 
particular  State,  and  it  overturns  the  Dred  Scott  decision  by 
making  all  persons  born  within  the  United  States  and  subject  to 
its  jurisdiction  citizens  of  the  United  States.  That  its  main  pur- 
pose was  to  establish  the  citizenship  of  the  negro  can  admit  of  no 
doubt.  The  phrase,  "  subject  to  its  jurisdiction  "  was  intended  to 
exclude  from  its  operation  children  of  ministers,  consuls,  and  citi- 
zens or  subjects  of  foreign  States  born  within  the  United  States. 

The  next  observation  is  more  important  in  view  of  the  arguments 
of  counsel  in  the  present  case.  It  is,  that  the  distinction  between 
citizenship  of  the  United  States  and  citizenship  of  a  State  is  clearly 
recognized  and  established.  Not  only  may  a  man  be  a  citizen  of 
the  United  States  without  being  a  citizen  of  a  State,  but  an  impor- 
tant element  is  necessary  to  convert  the  former  into  the  latter. 
He  must  reside  within  the  State  to  make  him  a  citizen  of  it,  but  it 
is  only  necessary  that  he  should  be  born  or  naturalized  in  the 
United  States  to  be  a  citizen  of  the  Union.  .  .  . 

We  think  this  distinction  and  its  explicit  recognition  in  this 
amendment  of  great  weight  in  this  argument,  because  the  next 
paragraph  of  this  same  section,  wiiich  is  the  one  mainly  relied  on 
by  the  plaintiffs  in  error,  speaks  only  of  pri\ileges  and  immunities 


532       CITIZENS    OF   THE    UNITED    STATES   AND    THEIR    PRIVILEGES. 

of  citizens  of  the  United  States,  and  does  not  speak  of  those  of 
citizens  of  the  several  States.  The  argument,  however,  in  favor 
of  the  plaintiffs  rests  wholly  on  the  assumption  that  the  citizenship 
is  the  same,  and  the  privileges  and  immunities  guaranteed  by  the 
clause  are  the  same. 

The  language  is,  "  No  State  shall  make  or  enforce  anj'^  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States."  It  is  a  little  remarkable,  if  this  clause  was  intended  as  a 
protection  to  the  citizen  of  a  State  against  the  legislative  power  of 
his  own  State,  that  the  word  citizen  of  the  State  should  be  left  out 
when  it  is  so  carefullj^  used,  and  used  in  contradistinction  to  citizens 
of  the  United  States,  in  the  very  sentence  which  precedes  it.  It  is 
too  clear  for  argument  that  the  change  in  phraseology  was  adopted 
understandingly  and  with  a  purpose.  .  .  . 

If,  then,  there  is  a  difference  between  the  privileges  and  immuni- 
ties belonging  to  a  citizen  of  the  United  States  as  such,  and  those 
belonging  to  the  citizen  of  the  State  as  such,  the  latter  must  rest 
for  their  security  and  protection  where  they  have  heretofore  rested; 
for  they  are  not  embraced  by  this  paragraph  of  the  amendment. 

The  first  occurrence  of  the  words  "  privileges  and  immunities  " 
in  our  constitutional  history,  is  to  be  found  in  the  fourth  of  the 
articles  of  the  old  Confederation. 

It  declares  "  that  the  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different  States 
in  this  Union,  the  free  inhabitants  of  each  of  these  States,  paupers, 
vagabonds,  and  fugitives  from  justice  excepted,  shall  be  entitled 
to  all  the  privileges  and  immunities  of  free  citizens  in  the  several 
States;  and  the  people  of  each  State  shall  have  free  ingress  and 
regress  to  and  from  any  other  State,  and  shall  enjoy  therein  all  the 
privileges  of  trade  and  commerce,  subject  to  the  same  duties, 
impositions,  and  restrictions  as  the  inliabitants  thereof  respec- 
tively." 

In  the  Constitution  of  the  United  States,  which  superseded  the 
Articles  of  Confederation,  the  corresponding  provision  is  found 
in  section  two  of  the  fourth  article,  in  the  following  words:  "  The 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  of  the  several  States." 

There  can  be  but  little  question  that  the  purpose  of  both  these 
provisions  is  the  same,  and  that  the  privileges  and  immunities 
intended  are  the  same  in  each.  In  the  article  of  the  Confederation 
we  have  some  of  these  specifically  mentioned,  and  enough  perhaps 


SLAUGHTER-HOUSE    CASES.  533 

to  give  some  general  idea  of  the  class  of  civil  rights  meant  by  the 
phrase. 

Fortunately  we  are  not  without  judicial  construction  of  this 
clause  of  the  Constitution.  The  first  and  the  leading  case  on  the 
subject  is  that  of  Corfield  v.  Corj^ell,  decided  by  Mr.  Justice 
Washington  in  the  Circuit  Court  for  the  District  of  Pennsylvania 
in  1823.     (4  Wash.  C.  C.  371.) 

''  The  inquiry,"  he  says,  "  is,  what  are  the  privileges  and  im- 
munities of  citizens  of  the  several  States  ?  We  feel  no  hesitation 
in  confining  these  expressions  to  those  privileges  and  immunities 
which  are  fundamental;  which  belong  of  right  to  the  citizens  of  all 
free  governments,  and  which  have  at  all  times  been  enjoyed  by 
citizens  of  the  several  States  which  compose  this  Union,  from  the 
time  of  their  becoming  free,  independent,  and  sovereign.  What 
these  fundamental  principles  are,  it  would  be  more  tedious  than 
difficult  to  enumerate.  They  may  all,  however,  be  comprehended 
under  the  f ollo^vdng  general  heads :  protection  by  the  government, 
with  the  right  to  acquire  and  possess  property  of  every  kind,  and  to 
pursue  and  obtain  happiness  and  safety,  subject,  nevertheless,  to 
such  restraints  as  the  government  may  prescribe  for  the  general 
good  of  the  whole."  .  .  . 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  by 
citations  of  authority,  that  up  to  the  adoption  of  the  recent  amend- 
ments, no  claim  or  pretence  was  set  up  that  those  rights  depended 
on  the  Federal  government  for  their  existence  or  protection,  beyond 
the  very  few  express  limitations  which  the  Federal  Constitution 
imposed  upon  the  States  —  such,  for  instance,  as  the  prohibition 
against  ex  post  facto  laws,  bills  of  attainder,  and  laws  impairing 
the  obligation  of  contracts.  But  with  the  exception  of  these  and  a 
few  other  restrictions,  the  entire  domain  of  the  privileges  and  im- 
munities of  citizens  of  the  States,  as  above  defined,  lay  within  the 
constitutional  and  legislative  power  of  the  States,  and  without  that 
of  the  Federal  government.  Was  it  the  purpose  of  the  fourteenth 
amendment,  by  the  simple  declaration  that  no  State  should  make  or 
enforce  any  law  which  shall  abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States,  to  transfer  the  security  and  protection 
of  all  the  civil  rights  which  we  have  mentioned,  from  the  States  to 
the  Federal  government  ?  And  where  it  is  declared  that  Congress 
shall  have  the  power  to  enforce  that  article,  was  it  intended  to 
bring  within  the  power  of  Congress  the  entire  domain  of  civil  rights 
heretofore  belonging  exclusively  to  the  States  ?  .  .  . 


534       CITIZENS    OF   THE    UNITED    STATES   AND    THEIR   PRIVILEGES. 

We  are  convinced  that  no  such  results  were  intended  by  the  Con- 
gress which  proposed  these  amendments,  nor  by  the  legislatures  of 
the  States  which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in  the 
argument  are  those  which  belong  to  citizens  of  the  States  as  such, 
and  that  they  are  left  to  the  State  governments  for  security  and 
protection,  and  not  bj'^  this  article  placed  under  the  special  care  of 
the  Federal  government,  we  may  hold  ourselves  excused  from  de- 
fining the  privileges  and  immunities  of  citizens  of  the  United  States 
which  no  State  can  abridge,  until  some  case  involving  those  privi- 
leges may  make  it  necessary  to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immunities 
are  to  be  found  if  those  we  have  been  considering  are  excluded,  we 
venture  to  suggest  some  which  owe  their  existence  to  the  Federal 
government,  its  National  character,  its  Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  v.  Nevada, 
6  Wallace,  36.  It  is  said  to  be  the  right  of  the  citizen  of  this  great 
country,  protected  by  implied  guarantees  of  its  Constitution,  "  to 
come  to  the  seat  of  government  to  assert  any  claim  he  may  have 
upon  that  government,  to  transact  any  business  he  may  have  with 
it,  to  seek  its  protection,  to  share  its  offices,  to  engage  in  administer- 
ing its  functions.  He  has  the  right  of  free  access  to  its  seaports, 
through  which  all  operations  of  foreign  commerce  are  conducted, 
to  the  sub-treasuries,  land  offices,  and  courts  of  justice  in  the  several 
States."  .  .  . 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand 
the  care  and  protection  of  the  Federal  government  over  his  life, 
liberty,  and  property  when  on  the  high  seas  or  within  the  jurisdic- 
tion of  a  foreign  government.  Of  this  there  can  be  no  doubt,  nor 
that  the  right  depends  upon  his  character  as  a  citizen  of  the  United 
States.  The  right  to  peaceably  assemble  and  petition  for  redress 
of  grievances,  the  privilege  of  the  writ  of  habeas  corpus,  are  rights 
of  the  citizen  guaranteed  by  the  Federal  Constitution.  The  right 
to  use  the  navigable  waters  of  the  United  States,  however  they 
may  penetrate  the  territory  of  the  several  States,  all  rights  secured 
to  our  citizens  by  treaties  with  foreign  nations,  are  dependent  upon 
citizenship  of  the  United  States,  and  not  citizenship  of  a  State. 
One  of  these  privileges  is  conferred  by  the  very  article  under  con- 
sideration. It  is  that  a  citizen  of  the  United  States  can,  of  his  own 
volition,  become  a  citizen  of  any  State  of  the  Union  by  a  bond  fide 
residence  therein,  with  the  same  rights  as  other  citizens  of  that 
State.     To  these  may  be  added  the  rights  secured  by  the  thirteenth 


SLAUGHTER-HOUSE    CASES. 


535 


and  fifteenth  articles  of  a\nendment,  and  by  the  other  clause  of  the 
fourteenth,  next  to  be  considered. 

But  it  useless  to  pursue  this  branch  of  the  inquiry,  since  we  are  of 
opinion  that  the  rights  claimed  by  these  plaintiffs  in  error,  if  they 
have  any  existence,  are  not  privileges  and  immunities  of  citizens  of 
the  United  States  within  the  meaning  of  the  clause  of  the  fourteenth 
amendment  under  consideration.  .  .  . 

The  argument  has  not  been  much  pressed  in  these  cases  that  the 
defendant's  charter  deprives  the  plaintiffs  of  their  property  ^\ithout 
due  process  of  law,  or  that  it  denies  to  them  the  equal  protection 
of  the  law.  The  first  of  these  paragraphs  has  been  in  the  Con- 
stitution since  the  adoption  of  the  fifth  amenchnent,  as  a  restraint 
upon  the  Federal  power.  It  is  also  to  be  found  in  some  form  of 
expression  in  the  constitutions  of  nearly  all  the  States,  as  a  restraint 
upon  the  power  of  the  States.  This  law,  then,  has  practically 
been  the  same  as  it  now  is  during  the  existence  of  the  government, 
except  so  far  as  the  present  amendment  may  place  the  restraining 
power  over  the  States  in  this  matter  in  the  hands  of  the  Federal 

government. 

We  are  not  without  judicial  interpretation,  therefore,  both 
State  and  National,  of  the  meaning  of  this  clause.  And  it  is  suffi- 
cient to  say  that  under  no  construction  of  that  provision  that  we 
have  ever  seen,  or  any  that  we  deem  admissible,  can  the  restraint 
imposed  by  the  State  of  Louisiana  upon  the  exercise  of  their  trade 
by  the  butchers  of  New  Orleans  be  held  to  be  a  deprivation  of 
property  within  the  meaning  of  that  provision. 

"  Nor  shall  any  State  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  pervad- 
ing purpose  of  them,  which  we  have  already  discussed,  it  is  not 
difficult  to  give  a  meaning  to  this  clause.  The  existence  of  laws 
in  the  States  where  the  newly  emancipated  negroes  resided,  which 
discriminated  with  gross  injustice  and  hardship  against  them  as  a 
class,  was  the  evil  to  be  remedied  by  this  clause,  and  by  it  such 
laws  are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its  require- 
ments, then  by  the  fifth  section  of  the  article  of  amendment 
Congress  was  authorized  to  enforce  it  by  suitable  legislation.  We 
doubt  ver>'  much  whether  any  action  of  a  State  not  directed  by 
way  of  discrimination  against  the  negroes  as  a  class,  or  on  account 
of  their  race,  will  ever  be  held  to  come  within  the  purview  of  this 
provision.      It  is  so  clearly  a  provision  for  that  race  and  that 


53G       CITIZENS   OF   THE    UNITED    STATES   AND    THEIR    PRIVILEGES. 

emergency,  that  a  strong  case  would  be  necessary  for  its  application 
to  any  other.  But  as  it  i^  a  State  that  is  to  be  dealt  with,  and  not 
alone  the  validity  of  its  laws,  we  may  safely  leave  that  matter  until 
Congress  shall  have  exercised  its  power,  or  some  case  of  State 
oppression,  by  denial  of  equal  justice  in  its  courts,  shall  have 
claimed  a  decision  at  our  hands.  We  find  no  such  case  in  the  one 
before  us,  and  do  not  deem  it  necessary  to  go  over  the  argument 
again,  as  it  may  have  relation  to  this  particular  clause  of  the 
amendment. 

In  the  early  history  of  the  organization  of  the  government,  its 
statesmen  seem  to  have  divided  on  the  line  which  should  separate 
the  powers  of  the  National  government  from  those  of  the  State 
governments,  and  though  this  line  has  never  been  very  well  de- 
fined in  pubhc  opinion,  such  a  division  has  continued  from  that  day 
to  this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitution 
so  soon  after  the  original  instrument  was  accepted,  shows  a  prevail- 
ing sense  of  danger  at  that  time  from  the  Federal  power.  And  it 
cannot  be  denied  that  such  a  jealousy  continued  to  exist  with  many 
patriotic  men  until  the  breaking  out  of  the  late  civil  war.  It  was 
then  discovered  that  the  true  danger  to  the  perpetuity  of  the  Union 
was  in  the  capacity  of  the  State  organizations  to  combine  and  con- 
centrate all  the  powers  of  the  State,  and  of  contiguous  States,  for 
a  determined  resistance  to  the  General  Government. 

Unquestionably  this  has  given  great  force  to  the  argument,  and 
added  largely  to  the  number  of  those  who  believe  in  the  necessity 
of  a  strong  National  government. 

But,  however  pervading  this  sentiment,  and  however  it  may 
have  contributed  to  the  adoption  of  the  amendments  we  have  been 
considering,  we  do  not  see  in  those  amendments  any  purpose  to 
destroy  the  main  features  of  the  general  system.  Under  the  pres- 
sure of  all  the  excited  feeling  growing  out  of  the  war,  our  statesmen 
have  still  believed  that  the  existence  of  the  States  with  powers  for 
domestic  and  local  government,  including  the  regulation  of  civil 
rights  —  the  rights  of  person  and  of  property  —  was  essential  to 
the  perfect  working  of  our  complex  form  of  government,  though 
they  have  thought  proper  to  impose  additional  limitations  on  the 
States,  and  to  confer  additional  power  on  that  of  the  Nation.  .  .  . 

The  judgments  of  the  Supreme  Court  of  Louisiana  in  these 
cases  are 

Affirmed. 


BRADWELL   V.    THE    STATE. 


537 


Field,  J.,  dissenting.  .  .  . 

I  am  authorized  by  the  Chief  Justice,  Mr.  Justice  Swayne, 
and  Mr.  Justice  Bradley  to  state  that  they  concur  with  me  in 
this  dissenting  opinion. 

Bradley,  J.,  also  dissenting.  .  .  . 

Swayne,  J.,  dissenting.  .  .  . 


BRADWELL   v.   THE  STATE. 
Supreme  Court  of  the  United  States.     1873. 

[16  Wallace,  130.]  ' 

Error  to  the  Supreme  Court  of  IlUnois. 

Mrs.  Bradwell  petitioned  the  Supreme- Court  of  IlHnois  for  a 
hcense  to  practise  law,  accompanying  the  petition  with  a  lower 
court's  certificate  of  character  and  of  qualifications  and  with  an 
affidavit  that  she  had  been  born  in  Vermont  and  was  now  a  citizen 
and  resident  of  Illinois  and  a  citizen  of  the  United  States.  The 
application  was  denied. 

M.  H.  Carpenter,  for  plaintiff  in  error. 

Miller,  J.,  delivered  the  opinion  of  the  court. 

The  record  in  this  case  is  not  very  perfect,  but  it  may  be  fairly 
taken  that  the  plaintiff  asserted  her  right  to  a  license  on  the 
grounds,  among  others,  that  she  was  a  citizen  of  the  United  States, 
and  that  having  been  a  citizen  of  Vermont  at  one  time,  she  was,  in 
the  State  of  Illinois,  entitled  to  any  right  granted  to  citizens  of  the 

latter  State. 

The  court  having  overruled  these  claims  of  right  founded  on  the 
clauses  of  the  Federal  Constitution  before  referred  to,  those  proposi- 
tions may  be  considered  as  properly  before  this  court. 

As  regards  the  provision  of  the  Constitution  that  citizens  of 
each  State  shall  be  entitled  to  all  the  privileges  and  immunities  of 
citizens  in  the  several  States,  the  plaintiff  in  he:  affidavit  has  stated 
very  clearly  a  case  to  which  it  is  inapphcable. 

The  protection  designed  by  that  clause,  as  has  been  repeatedly 
held,  has  no  appUcation  to  a  citizen  of  the  State  whose  laws  are 
1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


538       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR   PRIVILEGES. 

complained  of.  If  the  plaintiff  was  a  citizen  of  the  State  of  Illinois, 
that  provision  of  the  Constitution  gave  her  no  protection  against 
its  courts  or  its  legislation. 

The  plaintiff  seems  to  have  seen  this  difficulty,  and  attempts  to 
avoid  it  by  stating  that  she  was  born  in  Vermont. 

While  she  remained  in  Vermont  that  circumstance  made  her  a 
citizen  of  that  State.  But  she  states,  at  the  same  time,  that  she  is  a 
citizen  of  the  United  States,  and  that  she  is  noAV,  and  has  been  for 
many  years  past,  a  resident  of  Chicago,  in  the  State  of  Illinois. 

The  fourteenth  amendment  declares  that  citizens  of  the  United 
States  are  citizens  of  the  State  within  which  they  reside;  therefore 
the  plaintiff  was,  at  the  time  of  making  her  application,  a  citizen 
of  the  United  States  and  a  citizen  of  the  State  of  Illinois. 

We  do  not  here  mean  to  say  that  there  may  not  be  a  temporary 
residence  in  one  Stale,  with  intent  to  return  to  another,  which  will 
not  create  citizenship  in  the  former.  But  the  plaintiff  states 
nothing  to  take  her  case  out  of  the  definition  of  citizenship  of  a 
State  as  defined  by  the  first  section  of  the  fourteenth  amendment. 

In  regard  to  that  amendment  counsel  for  the  plaintiff  in  this 
court  truly  says  that  there  are  certain  privileges  and  immunities 
which  belong  to  a  citizen  of  the  United  States  as  such;  otherwise 
it  would  be  nonsense  for  the  fourteenth  amendment  to  prohibit  a 
State  from  abridging  them,  and  he  proceeds  to  argue  that  admis- 
sion to  the  bar  of  a  State  of  a  person  who  possesses  the  requisite 
learning  and  character  is  one  of  those  which  a  State  may  not  deny. 

In  this  latter  proposition  we  are  not  able  to  concur  with  counsel. 
We  agree  with  him  that  there  are  privileges  and  immunities  belong- 
ing to  citizens  of  the  United  States,  in  that  relation  and  character, 
and  that  it  is  these  and  these  alone  which  a  State  is  forbidden  to 
abridge.  But  the  right  to  admission  to  practice  in  the  courts  of  a 
State  is  not  one  of  them.  This  right  in  no  sense  depends  on  citizen- 
ship of  the  United  States.  It  has  not,  as  far  as  we  know,  ever  been 
made  in  any  State,  or  in  any  case,  to  depend  on  citizenship  at  all. 
Certainly  many  prominent  and  distinguished  la^vyers  have  been 
admitted  to  practice,  both  in  the  State  and  Federal  courts,  who 
were  not  citizens  of  the  United  States  or  of  any  State.  But,  on 
whatever  basis  this  right  may  be  placed,  so  far  as  it  can  have  any 
relation  to  citizenship  at  all,  it  would  seem  that,  as  to  the  courts  of 
a  State,  it  would  relate  to  citizenship  of  the  State,  and  as  to  Federal 
courts,  it  would  relate  to  citizenship  of  the  United  States. 

The  opinion  just  delivered  in  the  Slaughter-House  Cases,  16 
Wall.  139,  renders  elaborate  argument  in  the  present  case  unneces- 


BRADWELL    V.    THE    STATE. 


539 


sary;  for,  unless  we  are  wholly  and  radically  mistaken  in  the  prin- 
ciples on  which  those  cases  are  decided,  the  right  to  control  and 
regulate  the  granting  of  license  to  practise  law  in  the  courts  of  a 
State  is  one  of  those  powers  which  are  not  transferred  for  its  pro- 
tection to  the  Federal  government,  and  its  exercise  is  in  no  manner 
governed  or  controlled  by  citizenship  of  the  United  States  in  the 
partv  seeking  such  license. 

Itis  unnecessary  to  repeat  the  argument  on  which  the  judgment 
in  those  cases  is  founded.  It  is  sufficient  to  say  they  are  conclusive 
of  the  present  case.  Judgment  affirmed. 

BR.VDLEY,  J.  I  concur  in  the  judgment  of  the  court  in  this  case, 
by  which  the  judgment  of  the  Supreme  Court  of  Illinois  is  affirmed, 
but  not  for  the  reasons  specified  in  the  opinion  just  read. 

The  claim  of  the  plaintiff,  who  is  a  married  woman,  to  be  ad- 
mitted to  practise  as  an  attorney  and  counsellor-at-law,  is  based 
upon  the  supposed  right  of  every  person,  man  or  woman,  to  engage 
in  anv  lawful  employment  for  a  livelihood.     The  Supreme  Court  of 
Illinois  denied  the  application  on  the  ground  that,  by  the  common 
law,  which  is  the  basis  of  the  laws  of  Illinois,  only  men  were  admit- 
ted to  the  bar,  and  the  legislature  had  not  made  any  change  in  this 
respect,  but  had  simply  provided  that  no  person  should  be  ad- 
mitted to  practise  as  attorney  or  counsellor  without  having  pre- 
viously obtained  a  license  for  that  purpose  from  two  justices  of  the 
Supreme  Court,  and  that  no  person  should  receive  a  license  without 
first  obtaining  a  certificate  from  the  court  of  some  county  of  his 
good  moral  character.     In  other  respects  it  was  left  to  the  discre- 
tion of  the  court  to  establish  the  rules  by  which  admission  to  the 
profession  should  be  determined.      The  court,  however,  regarded 
itself  as  bound  by  at  least  two  limitations.     One  was  that  it  should 
estabhsh  such  terms  of  admission  as  would  promote  the  proper 
administration  of  justice,  and  the  other  that  it  should  not  achnit  any 
persons,  or  class  of  persons,  not  intended  by  the  legislature  to  be 
admitted,  even  though  not  expressly  excluded  by  statute.      In 
view  of  this  latter  limitation  the  court  felt  compelled  to  deny  the 
application  of  females  to  be  admitted  as  members  of  the  bar 
Being  contrary  to  the  rules  of  the  common  law  and  the  usages  of 
Westminster  Hall  from  time  immemorial,  it  could  not  be  supposed 
that  the  legislature  had  intended  to  adopt  any  different  rule. 

The  claim  that,  under  the  fourteenth  amendment  of  the  Con- 
stitution, which  declares  that  no  State  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  and  immunities  of  citizens  of 


540       CITIZENS    OF   THE   UNITED    STATES   AND    THEIR    PRIVILEGES. 

the  United  States,  the  statute  law  of  Illinois,  or  the  common  law 
prevailing  in  that  State,  can  no  longer  be  set  up  as  a  barrier  against 
the  right  of  females  to  pursue  any  lawful  employment  for  a  liveli- 
hood (the  practice  of  law  included),  assumes  that  it  is  one  of  the 
privileges  and  immunities  of  women  as  citizens  to  engage  in  any  and 
every  profession,  occupation,  or  employment  in  civil  life. 

It  certainly  cannot  be  affirmed,  as  an  historical  fact,  that  this 
has  ever  been  established  as  one  of  the  fundamental  privileges  and 
immunities  of  the  sex.  ...  A  married  woman  is  incapable, 
without  her  husband's  consent,  of  making  contracts  which  shall  be 
binding  on  her  or  him.  This  very  incapacity  was  one  circumstance 
which  the  Supreme  Court  of  Illinois  deemed  important  in  rendering 
a  married  woman  incompetent  fully  to  perform  the  duties  and 
trusts  that  belong  to  the  office  of  an  attorney  and  counsellor.  .  .  . 

The  humane  movements  of  modern  society,  which  have  for  their 
object  the  multiplication  of  avenues  for  woman's  advancement, 
and  of  occupations  ^^apted  to  her  condition  and  sex,  have  my 
heartiest  concurrence.  But  I  am  not  prepared  to  say  that  it  is 
one  of  her  fundamental  rights  and  privileges  to  be  admitted  into 
every  office  and  position,  including  those  which  require  highly 
special  qualifications  and  demanding  special  responsibilities.  In 
the  nature  of  things  it  is  not  every  citizen  of  every  age,  sex,  and 
condition  that  is  qualified  for  every  calling  and  position.  It  is  the 
prerogative  of  the  legislator  to  prescribe  regulations  founded  on 
nature,  reason,  and  experience  for  the  due  admission  of  qualified 
persons  to  professions  and  callings  demanding  special  skill  and 
confidence.  .  .  . 

SwAYNE  and  Field,  JJ.,  concurred  in  the  foregoing  opinion.  .  .  . 

Chase,  C.  J.,  dissented  from  the  judgment  of  the  court,  and  from 
all  the  opinions. 


MINOR   V.    HAPPERSETT. 


541 


MINOR  V.   HAPPERSETT. 
Supreme  Court  of  the  United  States.     1875. 

[21  Wallace,  162.]  ^ 

Error  to  the  Supreme  Court  of  Missouri. 

Mrs.  Virginia  Minor  brought  action  in  a  lower  court  of  Missouri 
against  Happersett,  a  registrar  of  voters,  for  refusing  to  register 
her.  She  alleged  that  she  was  a  native  born,  free,  white  citizen  of 
the  United  States  and  of  Missouri,  and  over  the  age  of  twenty-one. 
On  demurrer,  judgment  was  given  for  the  defendant.  The  judg- 
ment was  affirmed  by  the  Supreme  Court  of  Missouri. 

Francis  Minor  and  others,  for  plaintiff  in  error;  and  no  opposmg 

counsel. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

The  question  is  presented  in  this  case,  whether,  smce  the  adop- 
tion of  the  fourteenth  amendment,  a  woman,  who  is  a  citizen  of  the 
United  States  and  of  the  State  of  Missouri,  is  a  voter  m  that  State, 
notwithstanding  the  provision  of  the  constitution  and  laws  of  the 
State  which  confine  the  right  of  suffrage  to  men  alone.  \\  e  might, 
perhaps,  decide  the  case  upon  other  grounds,  but  this  question  is 
fairly  made.  From  the  opinion  we  find  that  it  was  the  only  one 
decided  in  the  court  below,  and  it  is  the  only  one  which  has  been 

argued  here.  ...  i-     j  •     +u 

The  argument  is,  that  as  a  woman,  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof,  is  a  citizen  of 
the  United  States  and  of  the  State  in  which  she  resides,  she  has  the 
right  of  suffrage  as  one  of  the  privileges  and  immumties  of  her 
citizenship,  which  the  State  cannot  by  its  laws  or  constitution 

abridge.  ,        .  .  rri. 

There  is  no  doubt  that  women  may  be  citizens.  Ihey  are 
persons  and  by  the  fourteenth  amendment  "  all  persons  born  or 
naturalized  in  the  United  States  and  subject  to  the  jurisdiction 
thereof  "  are  expressly  declared  to  be  "  citizens  of  the  Umted 
States  and  of  the  State  wherein  they  reside."  But,  in  our  opimon, 
it  did  not  need  this  amenchnent  to  give  them  that  position.  Before 
its  adoption  the  Constitution  of  the  United  States  did  not  m  terms 
prescribe  who  should  be  citizens  of  the  United  States  or  of  the 
several  States,  yet  there  were  necessarily  such  citizens  without 
such  provision.  There  cannot  be  a  nation  without  a  people.  1  he 
very  idea  of  a  political  community,  such  as  a  nation  is,  imphes  an 
1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


542       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR   PRIVILEGES. 

association  of  persons  for  the  promotion  of  their  general  welfare. 
Each  one  of  the  persons  associated  becomes  a  member  of  the  nation 
formed  by  the  association.  He  owes  it  allegiance  and  is  entitled 
to  its  protection.  Allegiance  and  protection  are,  in  this  connection, 
reciprocal  obligations.  The  one  is  a  compensation  for  the  other; 
allegiance  for  protection  and  protection  for  allegiance. 

For  convenience  it  has  been  found  necessary  to  give  a  name  to 
this  membership.  The  object  is  to  designate  by  a  title  the  person 
and  the  relation  he  bears  to  the  nation.  For  this  purpose  the 
words  "  subject,"  "  inhabitant,"  and  "  citizen  "  have  been  used, 
and  the  choice  between  them  is  sometimes  made  to  depend  upon 
the  form  of  the  government.  Citizen  is  now  more  commonly 
employed,  however,  and  as  it  has  been  considered  better  suited  to 
the  description  of  one  living  under  a  republican  government,  it 
was  adopted  by  nearly  all  of  the  States  upon  their  separation  from 
Great  Britain,  and  was  afterwards  adopted  in  the  Articles  of  Con- 
federation and  in  the  Constitution  of  the  United  States.  When 
used  in  this  sense  it  is  understood  as  conve3'ing  the  idea  of  member- 
ship of  a  nation,  and  nothing  more.  .  .  . 

The  Constitution  does  not,  in  words,  say  who  shall  be  natural- 
born  citizens.  Resort  must  be  had  elsewhere  to  ascertain  that. 
At  common  law,  with  the  nomenclature  of  which  the  framers  of  the 
Constitution  were  familiar,  it  was  never  doubted  that  all  children 
born  in  a  country  of  parents  who  were  its  citizens  became  them- 
selves, upon  their  birth,  citizens  also.  These  were  natives,  or 
natural-born  citizens,  as  distinguished  from  aliens  or  foreigners. 
Some  authorities  go  further  and  include  as  citizens  children  born 
within  the  juriscHction  without  reference  to  the  citizenship  of  their 
parents.  As  to  this  class  there  have  been  doubts,  but  never  as  to 
the  first.  For  the  purposes  of  this  case  it  is  not  necessary  to  solve 
these  doubts.  It  is  sufficient  for  everything  we  have  now  to  con- 
sider that  all  children  born  of  citizen  parents  within  the  jurisdic- 
tion are  themselves  citizens.  The  words  "  all  children  "  are 
certainly  as  comprehensive,  when  used  in  this  connection,  as  ''  all 
persons,"  and  if  females  are  included  in  the  last  they  must  be  in  the 
first.  That  they  are  included  in  the  last  is  not  denied.  In  fact 
the  whole  argument  of  the  plaintiffs  proceeds  upon  that  idea.  .  .  . 

From  the  commencement  of  the  legislation  upon  this  subject 
alien  women  and  alien  minors  could  be  made  citizens  by  naturaliza- 
tion, and  we  think  it  will  not  be  contended  that  this  would  have 
been  done  if  it  had  not  been  supposed  that  native  women  and 
native  minors  were  already  citizens  by  birth. 


MINOR   V.    HAPPERSETT.  543 

But  if  more  is  necessary  to  show  that  women  have  always  been 
considered  as  citizens  the  same  as  men,  abundant  proof  is  to  be 
found  in  the  legislative  and  judicial  history  of  the  country.  Thus, 
by  the  Constitution,  the  judicial  power  of  the  United  States  is 
made  to  extend  to  controversies  between  citizens  of  different 
States.  Under  this  it  has  been  uniformly  held  that  the  citizenship 
necessary  to  give  the  courts  of  the  United  States  jurisdiction  of  a 
cause  must  be  affirmatively  shown  on  the  record.  Its  existence  as 
a  fact  may  be  put  in  issue  and  tried.  If  found  not  to  exist  the  case 
must  be  dismissed.  Notwithstanding  this  the  records  of  the  courts 
are  full  of  cases  in  which  the  jurisdiction  depends  upon  the  citizen- 
ship of  women,  and  not  one  can  be  found,  we  think,  in  which 
objection  was  made  on  that  account.  Certainly  none  can  be  found 
in  which  it  has  been  held  that  women  could  not  sue  or  be  sued  in  the 
courts  of  the  United  States.  Again,  at  the  time  of  the  adoption 
of  the  Constitution,  in  many  of  the  States  (and  in  some  probably 
now)  aliens  could  not  inherit  or  transmit  inheritance.  There  are  a 
multitude  of  cases  to  be  found  in  which  the  question  has  been  pre- 
sented whether  a  woman  was  or  was  not  an  alien,  and  as  such 
capable  or  incapable  of  inheritance,  but  in  no  one  has  it  been  in- 
sisted that  she  was  not  a  citizen  because  she  was  a  woman.  On  the 
contrary,  her  right  to  citizenship  has  been  in  all  cases  assumed. 
The  only  question  has  been  whether,  in  the  particular  case  under 
consideration,  she  had  availed  herself  of  the  right. 

In  the  legislative  department  of  the  government  similar  proof 
will  be  found.  Thus,  in  the  pre-emption  laws,  a  widow,  "  being  a 
citizen  of  the  United  States,"  is  allowed  to  make  settlement  on  the 
public  lands  and  purchase  upon  the  terms  specified,  and  women, 
"  being  citizens  of  the  United  States,"  are  permitted  to  avail  them- 
selves of  the  benefit  of  the  homestead  law. 

Other  proof  of  like  character  might  be  found,  but  certainly 
more  cannot  be  necessary  to  establish  the  fact  that  sex  has  never 
been  made  one  of  the  elements  of  citizenship  in  the  United  States. 
In  this  respect  men  have  never  had  an  advantage  over  women. 
The  same  laws  precisely  apply  to  both.  The  fourteenth  amend- 
ment did  not  affect  the  citizenship  of  women  any  more  than  it  did 
of  men.  In  this  particular,  therefore,  the  rights  of  Mrs.  Minor  do 
not  depend  upon  the  amendment.  .  .  . 

If  the  right  of  suffrage  is  one  of  the  necessar}^  privileges  of  a 
citizen  of  the  United  States,  then  the  constitution  and  laws  of 
Missouri  confining  it  to  men  are  in  violation  of  the  Constitution  of 
the  United  States,  as  amended,  and  consequently  void.      The 


544       CITIZENS   OF  THE   UNITED   STATES   AND   THEIR   PRIVILEGES. 

direct  question  is,  therefore,  presented  whether  all  citizens  are 
necessarily  voters. 

The  Constitution  docs  not  define  the  privileges  and  immunities 
of  citizens.  For  that  definition  we  must  look  elsewhere.  In  this 
case  we  need  not  determine  what  they  are,  but  only  whether 
suffrage  is  necessarily  one  of  them. 

It  certainly  is  nowhere  made  so  in  express  terms.  The  United 
States  has  no  voters  in  the  States  of  its  own  creation.  The  elective 
officers  of  the  United  States  are  all  elected  directly  or  indirectl}'  by 
State  voters.  .  .  . 

The  amendment  did  not  add  to  the  privileges  and  immunities  of 
a  citizen.  It  simply  furnished  an  additional  guaranty  for  the 
protection  of  such  as  he  already  had.  No  new  voters  were  neces- 
sarilj^  made  by  it.  Indirectly  it  may  have  had  that  effect,  because 
it  may  have  increased  the  number  of  citizens  entitled  to  suffrage 
under  the  constitution  and  laws  of  the  States,  but  it  operates  for 
this  purpose,  if  at  all,  through  the  States  and  the  State  laws,  and 
not  directly  upon  the  citizen. 

It  is  clear,  therefore,  we  think,  that  the  Constitution  has  not 
added  the  right  of  suffrage  to  the  privileges  and  immunities  of 
citizenship  as  they  existed  at  the  time  it  was  adopted.  This  makes 
it  proper  to  inquire  whether  suffrage  was  coextensive  with  the 
citizenship  of  the  States  at  the  time  of  its  adoption.  .  .  . 

When  the  Federal  Constitution  was  adopted,  all  the  States,  with 
the  exception  of  Rhode  Island  and  Connecticut,  had  constitutions 
of  their  own.  These  two  continued  to  act  under  their  charters 
from  the  Crown.  Upon  an  examination  of  those  constitutions  we 
find  that  in  no  State  were  all  citizens  permitted  to  vote.  .  .  . 

In  this  condition  of  the  law  in  respect  to  suffrage  in  the  several 
States  it  cannot  for  a  moment  be  doubted  that  if  it  had  been 
intended  to  make  all  citizens  of  the  United  States  voters,  the 
framers  of  the  Constitution  would  not  have  left  it  to  implication. 
So  important  a  change  in  the  condition  of  citizenship  as  it  actually 
existed,  if  intended,  would  have  been  expressly  declared. 

But  if  further  proof  is  necessary  to  show  that  no  such  change  was 
intended,  it  can  easily  be  found  both  in  and  out  of  the  Constitution. 
By  Article  4,  section  2,  it  is  provided  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immunities  of  citizens 
in  the  several  States."  If  suffrage  is  necessarily  a  part  of  citizen- 
ship, then  the  citizens  of  each  State  must  be  entitled  to  vote  in  the 
several  States  precisely  as  their  citizens  are.  This  is  more  than 
asserting  that  they  may  change  their  residence  and  become  citizens 


MINOR   V.    HAPPERSETT. 


545 


of  the  State  and  thus  be  voters.     It  goes  to  the  extent  of  insisting 
that  while  retaining  iheir  original  citizenship  they  may  vote  in  any 
State.      This,  we  think,   has  never  been  claimed.      And  again, 
by  the  very  terms  of  the  amendment  we  have  been  considering 
(the  fourteenth),  "  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians  not 
taxed.     But  when  the  right  to  vote  at  any  election  for  the  choice  of 
electors  for  President  and  Vice-President  of  the  United  States, 
representatives  in  Congress,  the  executive  and  judicial  officers  of  a 
State,  or  the  members  of  the  legislature  thereof,  is  denied  to  any  of 
the  male  inhabitants  of  such  State,  being  twenty-one  years  of  age 
and  citizens  of  the  United  States,  or  in  any  way  abridged,  except 
for  participation  in  rebellion,  or  other  crime,  the  basis  of  repre- 
sentation therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole  number  of 
male  citizens  twenty-one  years  of  age  in  such  State."     Why  this, 
if  it  was  not  in  the  power  of  the  legislature  to  deny  the  right  of 
suffrage  to  some  male  inhabitants  ?     And  if  suffrage  was  neces- 
sarily ^one  of  the  absolute  rights  of  citizenship,  why  confine  the 
operation  of  the  limitation  to  male  inhabitants  ?      Women  and 
children  are,  as  we  have  seen,  "  persons."     They  are  counted  in  the 
enumeration  upon  which  the  apportionment  is  to  be  made,  but  if 
they  were  necessarily  voters,  because  of  their  citizenship  unless 
clearly  excluded,  why  inflict  the  penalty  for  the  exclusion  of  males 
alone  ?     Clearly,  no  such  form  of  words  would  have  been  selected 
to  express  the  idea  here  indicated  if  suffrage  was  the  absolute  right 
of  all  citizens. 

And  still  again,  after  the  adoption  of  the  fourteenth  amendment, 
it  was  deemed  necessary-  to  adopt  a  fifteenth,  as  follows:  "  The 
right  of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States,  or  by  any  State,  on  account  of  race, 
color,  or  previous  condition  of  servitude."  The  fourteenth  amend- 
ment had  already  provided  that  no  State  should  make  or  enforce 
any  law  which  should  abridge  the  pri\'ileges  or  immunities  of 
citizens  of  the  United  States.  If  suffrage  was  one  of  these  privi- 
leges or  immunities,  why  amend  the  Constitution  to  prevent  its 
being  denied  on  account  of  race,  &c.  ?  Nothing  is  more  evident 
than  that  the  greater  must  include  the  less,  and  if  all  were  already 
protected  why  go  through  with  the  form  of  amending  the  Constitu- 
tion to  protect  a  part  ? 


546       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR    PRIVILEGES. 

It  is  true  that  the  United  States  guarantees  to  every  State  a 
repubhcan  form  of  government,  Constitution,  Article  4,  §  4.  It  is 
also  true  that  no  State  can  pass  a  bill  of  attainder,  lb.  Article  1, 
§  10,  and  that  no  person  can  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law,  lb.  Amendment  5.  All  these  several 
provisions  of  the  Constitution  must  be  construed  in  connection 
with  the  other  parts  of  the  instrument,  and  in  the  light  of  the  sur- 
rounding circumstances. 

The  guaranty  is  of  a  republican  form  of  government.  No 
particular  government  is  designated  as  republican,  neither  is  the 
exact  form  to  be  guaranteed,  in  any  manner  especially  designated. 
Here,  as  in  other  parts  of  the  instrument,  we  are  compelled  to 
resort  elsewhere  to  ascertain  what  was  intended. 

The  guaranty  necessarily  implies  a  duty  on  the  part  of  the  States 
themselves  to  provide  such  a  goverimient.  All  the  States  had 
governments  when  the  Constitution  was  adopted.  In  all  the 
people  participated  to  some  extent,  through  their  representatives 
elected  in  the  manner  specially  provided.  These  governments 
the  Constitution  did  not  change.  They  were  accepted  precisely 
as  they  were,  and  it  is,  therefore,  to  be  presumed  that  they  were 
such  as  it  was  the  duty  of  the  States  to  provide.  Thus  we  have 
unmistakable  evidence  of  what  was  republican  in  form,  within  the 
meaning  of  that  term  as  employed  in  the  Constitution. 

As  has  been  seen,  all  the  citizens  of  the  States  were  not  invested 
wdth  the  right  of  suffrage.  In  all,  save  perhaps  New  Jersey,  this 
right  was  only  bestowed  upon  men  and  not  upon  all  of  them. 
Under  these  circumstances  it  is  certainly  now  too  late  to  contend 
that  a  government  is  not  republican,  within  the  meaning  of  this 
guaranty  in  the  Constitution,  because  women  are  not  made  voters. 

The  same  may  be  said  of  the  other  provisions  just  quoted. 
Women  were  excluded  from  suffrage  in  nearly  all  the  States  by  the 
express  provision  of  their  constitutions  and  laws.  .  .  . 

But  we  have  already  sufficiently  considered  the  proof  found 
upon  the  inside  of  the  Constitution.  That  upon  the  outside  is 
equally  effective.  .  .  . 

No  new  State  has  ever  been  admitted  to  the  Union  which  has 
conferred  the  right  of  suffrage  upon  women,  and  this  has  never  been 
considered  a  valid  objection  to  her  admission.  On  the  contrary, 
as  is  claimed  in  the  argument,  the  right  of  suffrage  was  withdrawn 
from  women  as  early  as  1807  in  the  State  of  New  Jersey,  without 
any  attempt  to  obtain  the  interference  of  the  United  States  to 
prevent  it.  .  .  . 


MCCREADY   V.    VIRGINIA.  547 

Besides  this,  citizenship  has  not  in  all  cases  been  made  a  condition 
precedent  to  the  enjoyment  of  the  right  of  suffrage.  Thus,  in 
Missouri,  persons  of  foreign  birth,  who  have  declared  their  intention 
to  become  citizens  of  the  United  States,  may  under  certain  cir- 
cumstances vote.  The  same  provision  is  to  be  found  in  the 
constitutions  of  Alabama,  Arkansas,  Florida,  Georgia,  Indiana, 
Kansas,  Minnesota,  and  Texas. 

Certainly,  if  the  courts  can  consider  any  question  settled,  this  is 
one.  For  nearly  ninety  years  the  people  have  acted  upon  the  idea 
that  the  Constitution,  when  it  conferred  citizenship,  did  not 
necessarily  confer  the  right  of  suffrage.  If  uniform  practice  long 
continued  can  settle  the  construction  of  so  important  an  instru- 
ment as  the  Constitution  of  the  United  States  confessedly  is,  most 
certainly  it  has  been  done  here.  Our  province  is  to  decide  what 
the  law  is,  not  to  declare  what  it  should  be.  .  .  . 

Being  unanimously  of  the  opinion  that  the  Constitution  of  the 
United  States  does  not  confer  the  right  of  suffrage  upon  any  one, 
and  that  the  constitutions  and  laws  of  the  several  States  which 
commit  that  important  trust  to  men  alone  are  not  necessarily  void, 
we  afl&rm  the  judgement.^ 


McCREADY  v.   VIRGINIA. 

Supreme  Court  of  the  United  States.     1877. 

[94  United  States,  391.]  ^ 

Error  to  the  Supreme  Court  of  Appeals  of  Virginia. 

In  the  Circuit  Court  of  Gloucester  County,  Virginia,  McCready, 
a  citizen  of  Maryland,  was  indicted  for  planting  oysters  in  Ware 
River  in  violation  of  a  Virginia  statute  (Sess.  Acts  of  1874,  c.  214, 
s.  22)  providing  that  "  If  any  person  other  than  a  citizen  of  this 
State  shall  take  or  catch  oysters  or  any  shell-fish  in  any  manner, 
or  plant  oysters  in  the  waters  thereof,  or  in  the  rivers  Potomac  or 
Pocomoke,  he  shall  forfeit  $500,  and  the  vessel,  tackle,  and  appur- 
tenances." McCready  was  convicted  and  fined,  and  the  judgment 
was  affirmed  by  the  Virginia  Supreme  Court  of  Appeals. 

1  See  Pope  v.  Williams,  193  U.  S.  621  (1904).  —  Ed. 

'^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


548       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR    PRIVILEOES. 

Robert  Ould,  for  plaintiff  in  error;  and  R.  T.  Daniel,  Attorney 
General  of  Virginia,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

The  precise  question  to  be  determined  in  this  case  is,  whether  the 
State  of  Virginia  can  prohibit  the  citizens  of  other  States  from 
planting  oysters  in  Ware  River,  a  stream  in  that  State  where  the 
tide  ebbs  and  flows,  when  its  own  citizens  have  that  privilege. 

The  principle  has  long  been  settled  in  this  court,  that  each  State 
owns  the  l^eds  of  all  tide-waters  -within  its  jurisdiction,  unless  they 
have  been  granted  away.  Pollard's  Lessee  v.  Hagan,  3  How.  212; 
Smith  V.  Maryland,  18  How.  74;  Mumford  v.  Wardwell,  6  Wall. 
436;  Weber  v.  Harbor  Commissioners,  18  id.  66.  In  like  manner, 
the  States  own  the  tide-waters  themselves,  and  the  fish  in  them,  so 
far  as  they  are  capable  of  ownership  while  running.  For  this  pur- 
pose the  State  represents  its  people,  and  the  ownership  is  that  of  the 
people  in  their  united  sovereignty.  Martin  v.  Waddell,  16  Pet.  410. 
The  title  thus  held  is  subject  to  the  paramount  right  of  navigation, 
the  regulation  of  which,  in  respect  to  foreign  and  inter-state  com- 
merce, has  been  granted  to  the  United  States.  There  has  been, 
however,  no  such  grant  of  power  over  the  fisheries.  These  remain 
under  the  exclusive  control  of  the  State,  which  has  consequently 
the  right,  in  its  discretion,  to  appropriate  its  tide-waters  and  their 
beds  to  be  used  by  its  people  as  a  common  for  taking  and  cultivating 
fish,  so  far  as  it  may  be  done  without  obstructing  navigation. 
Such  an  appropriation  is  in  effect  nothing  more  than  a  regulation 
of  the  use  by  the  people  of  their  common  property.  The  right 
which  the  people  of  the  State  thus  acquire  comes  not  from  their 
citizensiiip  alone,  but  from  their  citizenship  and  property  combined. 
It  is,  in  fact,  a  property  right,  and  not  a  mere  privilege  or  immunity 
of  citizenship. 

By  art.  4,  sect.  2,  of  the  Constitution,  the  citizens  of  each  State 
are  "  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States."  Mr.  Justice  Washington,  in  Corfield  v.  Coryell, 
4  Wash.  C.  C.  380,  thought  that  this  provision  extended  only  to 
such  privileges  and  immunities  as  are  "  in  their  nature  funda- 
mental; which  belong  of  right  to  the  citizens  of  all  free  govern- 
ments." And  Mr.  Justice  Curtis,  in  Scott  v.  Sandford,  19  How. 
580,  described  them  as  such  "  as  belonged  to  general  citizenship." 
But  usually,  when  this  provision  of  the  Constitution  has  been  under 
consideration,  the  courts  have  manifested  the  disposition,  which 
this  court  did  in  Conner  v.  Elliott,  18  How.  593,  not  to  attempt  to 
define  the  words,  but  "  rather  to  leave  their  meaning  to  be  deter- 


MCCREADY   V.    VIRGINIA. 


549 


mined  in  each  case  upon  a  view  of  the  particular  rights  asserted  or 
denied  therein."  This  clearly  is  the  safer  course  to  pursue,  when, 
to  use  the  language  of  Mr.  Justice  Curtis,  in  Conner  v.  Elliott,  "  we 
are  dealing  ^^^th  so  broad  a  provision,  involving  matters  not  only  of 
great  dehcacy  and  unportance,  but  which  are  of  such  a  character 
that  any  merely  abstract  definition  could  scarcely  be  correct,  and 
a  failure  to  make  it  so  would  certainly  produce  mischief." 

Following,  then,  this  salutary  rule,  and  looking  only  to  the 
particular  right  which  is  here  asserted,  we  think  we  may  safely  hold 
that  the  citizens  of  one  State  are  not  invested  by  this  clause  of  the 
Constitution  with  any  interest  in  the  common  property  of  the  cit- 
izens of  another  State.     If  Virginia  had  by  law  provided  for  the 
sale  of  its  once  vast  pubhc  domain,  and  a  division  of  the  proceeds 
among  its  own  people,  no  one,  we  venture  to  say,  would  contend 
that  the  citizens  of  other  States  had  a  constitutional  right  to  the 
enjoyment  of  this  privilege  of  Virginia  citizenship.      Neither  if, 
instead  of  selling,  the  State  had  appropriated  the  same  property 
to  be  used  as  a  common  by  its  people  for  the  purposes  of  agriculture, 
could  the  citizens  of  other  States  avail  themselves  of  such  a  priv- 
ilege.    And  the  reason  is  ob\aous:  the  right  thus  granted  is  not  a 
privilege  or  immunity  of  general  but  of  special  citizenship.      It 
does  not  "  belong  of  right  to  the  citizens  of  all  free  governments," 
but  only  to  the  citizens  of  Virginia,  on  account  of  the  peculiar  cir- 
cumstances in  which  they  are  placed.      They,  and  they  alone, 
owned  the  property  to  be  sold  or  used,  and  they  alone  had  the  power 
to  dispose  of  it  as  they  saw  fit.     They  owned  it,  not  by  virtue  of 
citizenship  merely,  but  of  citizenship  and  domicile  united;    that 
is  to  say,  by  virtue  of  a  citizenship  confined  to  that  particular 

locality. 

The  planting  of  oysters  in  the  soil  covered  by  water  owned  m 
common  by  the  people  of  the  State  is  not  different  in  principle 
from  that  of  planting  corn  upon  dry  land  held  in  the  same  way. 
Both  are  for  the  purposes  of  cultivation  and  profit ;  and  if  the  State, 
in  the  regulation  of  its  public  domain,  can  grant  to  its  own  citizens 
the  exclusive  use  of  dry-  lands,  we  see  no  reason  why  it  may  not  do 
the  same  thing  in  respect  to  such  as  are  covered  by  water.  And  as 
all  concede  that  a  State  may  grant  to  one  of  its  citizens  the  exclu- 
sive use  of  a  part  of  the  common  property,  the  conclusion  would 
seem  to  follow,  that  it  might  by  appropriate  legislation  confine  the 
use  of  the  whole  to  its  owti  people  alone. 

Neither  do  we  think  this  case  is  at  all  affected  by  the  clause  of 
the  Constitution  which  confers  power  on  Congress  to  regulate  com- 


550       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR    PRIVILEGES. 

merce.  Art.  1,  sect.  8.  There  is  here  no  question  of  transporta- 
tion or  exchange  of  commodities,  but  only  of  cultivation  and 
production.  Commerce  has  nothing  to  do  with  land  while  produc- 
ing, but  only  with  the  product  after  it  has  become  the  subject  of 
trade.  Virginia,  owning  land  under  water  adapted  to  the  propaga- 
tion and  improvement  of  oysters,  has  seen  fit  to  grant  the  exclusive 
use  of  it  for  that  purpose  to  the  citizens  of  the  State.  In  this  way 
the  people  of  Virginia  may  be  enabled  to  produce  what  the  people 
of  the  other  States  cannot;  but  that  is  because  they  own  j^roperty 
which  the  others  do  not.  Their  productions  do  not  spring  from 
commerce,  but  commence  to  some  extent  from  them. 

We  are  unable  to  agree  with  the  counsel  for  the  plaintiff  in  error 
in  his  argument,  that  the  right  of  planting  may  be  enforced  as  a 
privilege  of  inter-state  citizenship,  even  though  that  of  taking 
cannot.  Planting  means,  in  "  oysterman's  phraseology,"  as 
counsel  say,  "  depositing  with  the  intent  that  the  oysters  shall 
remain  until  they  are  fattened."  The  object  is,  therefore,  to  make 
use  of  the  soil  and  the  water  above  it  for  the  improvement  and 
growth  of  that  which  is  planted.  It  is  this  use,  as  has  already  been 
seen,  that  the  State  has  the  right,  by  reason  of  its  ownership,  to 
prohibit.  Judgment  affirmed. 


ELK  V.  WILKINS. 

Supreme  Court  of  the  United  States.     1884. 

[112  United  States,  94.]  i 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Nebraska. 

By  the  constitution  of  Nebraska,  art.  7,  sect.  1,  "  Every  male 
person  of  the  age  of  twenty-one  years  or  upwards,  belonging  to 
either  of  the  following  classes,  who  shall  have  resided  in  the  State 
six  months,  and  in  the  county,  precinct  or  ward  for  the  term  pro- 
vided by  law,  shall  be  an  elector.  First.  Citizens  of  the  United 
States.  Second.  Persons  of  foreign  birth  who  shall  have  declared 
their  intention  to  become  citizens,  conformably  to  the  laws  of  the 
United  States  on  the  subject  of  naturalization,  at  least  thirty  days 
prior  to  an  election."     And  by  the  statutes  of  Nebraska  it  was 

*  The  statement  has  been  abbreviated.  —  Ed. 


ELK   V.    WILKINS.  551 

made  the  duty  of  registrars  to  enter  the  names  of  quahfied  voters 
(Comp.  Laws,  1881,  c.  26,  §  3;  c.  13,  §  14;  c.  76,  §§  6,  13,  19). 

Action  was  brought  by  an  Indian  against  the  registrar  of  a  ward 
of  Omaha  for  refusing  to  register  him  as  a  voter.  A  general  de- 
murrer to  the  petition  was  sustained;  and,  the  plaintiff  electing  to 
stand  by  his  petition,  judgment  was  rendered  for  the  defendant. 

A.  J.  Poppleton  and  another,  for  plaintiff  in  error;  and  G.  M. 
Lambertson,  contra. 

Gr-JlY,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

The  only  point  argued  by  the  defendant  in  this  court  is  whether 
the  petition  sets  forth  facts  enough  to  constitute  a  cause  of  action. 

The  decision  of  this  point,  as  both  parties  assume  in  their  briefs, 
depends  upon  the  question  whether  the  legal  conclusion,  that  under 
and  by  virtue  of  the  Fourteenth  Amendment  of  the  Constitution 
the  plaintiff  is  a  citizen  of  the  United  States,  is  supported  by  the 
facts  alleged  in  the  petition  and  achnitted  by  the  demurrer,  to  wit: 
The  plaintiff  is  an  Indian,  and  was  born  in  the  United  States,  and 
has  severed  his  tribal  relation  to  the  Indian  tribes,  and  fully  and 
completely  surrendered  himself  to  the  jurisdiction  of  the  United 
States,  and  still  continues  to  be  subject  to  the  jurisdiction  of  the 
United  States,  and  is  a  bona  fide  resident  of  the  State  of  Nebraska 
and  city  of  Omaha. 

The  petition,  while  it  does  not  show  of  what  Indian  tribe  the 
plaintiff  was  a  member,  yet,  by  the  allegations  that  he  "  is  an 
Indian,  and  was  born  \\'ithin  the  United  States,"  and  that  "  he  had 
severed  his  tribal  relation  to  the  Indian  tribes,"  clearly  implies 
that  he  was  born  a  member  of  one  of  the  Indian  tribes  within  the 
limits  of  the  United  States,  which  still  exists  and  is  recognized  as  a 
tribe  by  the  government  of  the  United  States.  Though  the  plain- 
tiff alleges  that  he  "  had  fully  and  completely  surrendered  himself 
to  the  jurisdiction  of  the  United  States,"  he  does  not  allege  that  the 
United  States  accepted  his  surrender,  or  that  he  has  ever  been 
naturalized,  or  taxed,  or  in  any  way  recognized  or  treated  as  a 
citizen,  by  the  State  or  by  the  United  States.  Nor  is  it  contended 
by  his  counsel  that  there  is  any  statute  or  treaty  that  makes  hun  a 
citizen. 

The  question  then  is,  whether  an  Indian,  born  a  member  of  one 
of  the  Indian  tribes  within  the  United  States,  is,  merely  by  reason 
of  his  birth  within  the  United  States,  and  of  his  afterwards  volun- 
tarily separating  himself  from  his  tribe  and  taking  up  his  residence 
among  white  citizens,  a  citizen  of  the  United  States,  within  the 


552       CITIZENS    OF   THE    UNITED    STATES   AND    THEIR   PRIVILEGES. 

meaning  of  the  first  section  of  the  Fourteenth  Amendment  of  the 
Constitution. 

Under  the  Constitution  of  the  United  States,  as  originally 
established,  "  Indians  not  taxed  "  were  excluded  from  the  persons 
according  to  whose  numbers  representatives  and  direct  taxes  were 
apportioned  among  the  several  States;  and  Congress  had  and 
exercised  the  power  to  regulate  commerce  with  the  Indian  tribes, 
and  the  members  thereof,  whether  within  or  without  the  boun- 
daries of  one  of  the  States  of  the  Union.  The  Indian  tribes,  being 
within  the  territorial  limits  of  the  United  States,  were  not,  strictly 
speaking,  foreign  Stages;  but  they  were  alien  nations,  distinct 
political  communities,  with  whom  the  United  States  might  and 
habitually  did  deal,  as  they  thought  fit,  either  through  treaties 
made  by  the  President  and  Senate,  or  through  acts  of  Congress  in 
the  ordinary  forms  of  legislation.  The  members  of  those  tribes 
owed  immediate  allegiance  to  their  several  tribes,  and  were  not 
part  of  the  people  of  the  United  States.  They  were  in  a  dependent 
condition,  a  state  of  pupilage,  resembling  that  of  a  ward  to  his 
guardian.  Indians  and  their  property,  exempt  from  taxation  by 
treaty  or  statute  of  the  United  States,  could  not  be  taxed  by  any 
State.  General  acts  of  Congress  did  not  apply  to  Indians,  unless 
so  expressed  as  to  clearly  manifest  an  intention  to  include  them. 
Constitution,  art.  1,  sects.  2,  8;  art.  2,  sect.  2;  Cherokee  Nation  v. 
Georgia,  5  Pet.  1;  Worcester  v.  Georgia,  6  Pet.  515;  United  States 
V.  Rogers,  4  How.  567;  United  States  v.  HoUiday,  3  Wall.  407; 
Case  of  the  Kansas  Indians,  5  Wall.  737;  Case  of  the  New  York 
Indians,  5  Wall.  761;  Case  of  the  Cherokee  Tobacco,  11  Wall.  616; 
United  States  v.  Whiskey,  93  U.  S.  188;  Pennock  v.  Commissioners, 
103  U.  S.  44;  Crow  Dog's  Case,  109  U.  S.  556;  Goodell  v.  Jackson, 
20  Johns.  693;  Hastings  v.  Farmer,  4  N.  Y.  293. 

The  alien  and  dependent  condition  of  the  members  of  the  Indian 
tribes  could  not  be  put  off  at  their  own  will,  without  the  action  or 
assent  of  the  United  States.  They  were  never  deemed  citizens  of 
the  United  States,  except  under  explicit  provisions  of  treaty  or 
statute  to  that  effect,  either  declaring  a  certain  tribe,  or  such 
members  of  it  as  chose  to  remain  behind  on  the  removal  of  the  tribe 
westward,  to  be  citizens,  or  authorizing  individuals  of  particular 
tribes  to  become  citizens  on  application  to  a  court  of  the  United 
States  for  naturalization,  and  satisfactory  proof  of  fitness  for 
civilized  life.  .  .  . 

The  distinction  between  citizenship  by  birth  and  citizenship  by 
naturalization  is  clearly  marked  in  the  provisions  of  the  Constitu- 


ELK   V.    WILKINS.  553 

tion,  by  which  ''  no  person,  except  a  natural  born  citizen,  or  a 
citizen  of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President  ";  and 
"  the  Congress  shall  have  power  to  establish  an  uniform  rule  of 
naturahzation."     Constitution,  art.  2,  sect.  1;  art.  1,  sect.  8. 

By  the  Thirteenth  Amendment  of  the  Constitution  slavery  was 
prohibited.  The  main  object  of  the  opening  sentence  of  the 
Fourteenth  Amendment  was  to  settle  the  question,  upon  which 
there  had  been  a  difference  of  opinion  throughout  the  country  and 
in  this  court,  as  to  the  citizenship  of  free  negroes  (Scott  v.  Sandford, 
19  How.  393);  and  to  put  it  beyond  doubfrthat  all  persons,  white 
or  black,  and  whether  formerly  slaves  or  not,  born  or  naturalized 
in  the  United  States,  and  owing  no  allegiance  to  any  alien  power, 
should  be  citizens  of  the  United  States  and  of  the  State  in  which 
they  reside.  Slaughter-House  Cases,  16  Wall.  36,  73;  Strauder  v. 
West  Virginia,  100  U.  S.  303,  306. 

This  section  contemplates  two  sources  of  citizenship,  and  two 
sources  only:  birth  and  naturalization.  The  persons  declared 
to  be  citizens  are  "  all  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof."  The  evident 
meaning  of  these  last  words  is,  not  merely  subject  in  some  respect 
or  degree  to  the  jurisdiction  of  the  United  States,  but  completely 
subject  to  their  political  jurisdiction,  and  owing  them  direct  and 
immediate  allegiance.  And  the  words  relate  to  the  time  of  birth 
in  the  one  case,  as  they  do  to  the  time  of  naturalization  in  the  other. 
Persons  not  thus  subject  to  the  jurisdiction  of  the  United  States 
at  the  time  of  birth  cannot  become  so  afterwards,  except  by  being 
naturalized,  either  individually,  as  by  proceedings  under  the 
naturalization  acts,  or  collectively,  as  by  the  force  of  a  treaty  by 
which  foreign  territory  is  acquired. 

Indians  born  within  the  territorial  limits  of  the  United  States, 
members  of,  and  owing  immediate  allegiance  to,  one  of  the  Indian 
tribes  (an  alien,  though  dependent,  power),  although  in  a  geo- 
graphical sense  born  in  the  United  States,  are  no  more  "  born  in 
the  United  States  and  subject  to  the  jurischction  thereof,"  within 
the  meaning  of  the  first  section  of  the  Fourteenth  Amendment, 
than  the  children  of  subjects  of  any  foreign  government  born 
within  the  domain  of  that  government,  or  the  children  born  within 
the  United  States,  of  ambassadors  or  other  public  ministers  of 
foreign  nations. 

This  view  is  confirmed  by  the  second  section  of  the  Fourteenth 
Amendment,  which  provides  that  "  representatives  shall  be  ap- 


554       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR    PRIVILEGES. 

portioned  among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed."  Slavery  having  been  abolished, 
and  the  persons  formerly  held  as  slaves  made  citizens,  this  clause 
fixing  the  apportionment  of  representatives  has  abrogated  so  much 
of  the  corresponding  clause  of  the  original  Constitution  as  counted 
only  three-fifths  of  such  persons.  But  Indians  not  taxed  are  still 
excluded  from  the  count,  for  the  reason  that  they  are  not  citizens. 
Their  absolute  exclusion  from  the  basis  of  representation,  in  which 
all  other  persons  are  now  included,  is  wholly  inconsistent  with 
their  being  considered  citizens. 

So  the  further  provision  of  the  second  section  for  a  proportionate 
reduction  of  the  basis  of  the  representation  of  any  State  in  which 
the  right  to  vote  for  presidential  electors,  representatives  in  Con- 
gress, or  executive  or  judicial  officers  or  members  of  the  legislature 
of  a  State,  is  denied,  except  for  participation  in  rebellion  or  other 
crime,  to  "  any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age  and  citizens  of  the  United  States,"  cannot  ap])ly 
to  a  denial  of  the  elective  franchise  to  Indians  not  taxed,  who  form 
no  part  of  the  people  entitled  to  representation.  ... 

Since  the  ratification  of  the  Fourteenth  Amendment,  Congress 
has  passed  several  acts  for  naturalizing  Indians  of  certain  tribes, 
which  would  have  been  superfluous  if  they  were,  or  might  become, 
without  any  action  of  the  government,  citizens  of  the  United 
States.  .  .  . 

The  national  legislation  has  tended  more  and  more  towards  the 
education  and  civilization  of  the  Indians,  and  fitting  them  to  be 
citizens.  But  the  question  whether  any  Indian  tribes,  or  any 
members  thereof,  have  become  so  far  advanced  in  civilization, 
that  they  should  be  let  out  of  the  state  of  pupilage,  and  admitted 
to  the  privileges  and  responsibilities  of  citizenship,  is  a  question 
to  be  decided  by  the  nation  whose  wards  they  are  and  whose 
citizens  they  seek  to  become,  and  not  by  each  Indian  for  himself. 

There  is  nothing  in  the  statutes  or  decisions,  referred  to  by 
counsel,  to  control  the  conclusion  to  which  we  have  been  brought 
by  a  consideration  of  the  language  of  the  Fourteenth  Amendment, 
and  of  the  condition  of  the  Indians  at  the  time  of  its  proposal  and 
ratification.  .  .  . 

The  law  upon  the  question  before  us  has  been  well  stated  by 
Judge  Deady  in  the  District  Court  of  the  United  States  for  the 
District  of  Oregon.  In  giving  judgment  against  the  plaintiff  in  a 
case  resembling  the  case  at  bar,  he  said:   "  Being  born  a  member 


ELK    V.    WILKINS.  555 

of  '  an  independent  political  community  '  —  the  Chinook  —  he 
was  not  born  subject  to  the  jurisdiction  of  the  United  States  — 
not  born  in  its  allegiance."  McKay  v.  Campbell,  2  Sawyer,  118, 
134.  And  in  a  later  case  he  said:  "  But  an  Indian  cannot  make 
himself  a  citizen  of  the  United  States  without  the  consent  and  co- 
operation of  the  government.  The  fact  that  he  has  abandoned 
his  nomadic  life  or  tribal  relations,  and  adopted  the  habits  and 
manners  of  civilized  people,  may  be  a  good  reason  why  he  should 
be  made  a  citizen  of  the  United  States,  but  does  not  of  itself  make 
him  one.  To  be  a  citizen  of  the  United  States  is  a  political  privi- 
lege which  no  one,  not  born  to,  can  assume  without  its  consent  in 
some  form.  The  Indians  in  Oregon,  not  being  born  subject  to  the 
jurisdiction  of  the  United  States,  were  not  born  citizens  thereof, 
and  I  am  not  aware  of  any  law  or  treaty  by  which  any  of  them  have 
been  made  so  since."  United  States  v.  Osborne,  6  Sawyer,  406, 
409. 

Upon  the  question  whether  any  action  of  a  State  can  confer 
rights  of  citizenship  on  Indians  of  a  tribe  still  recognized  by  the 
United  States  as  retaining  its  tribal  existence,  we  need  not,  and  do 
not,  express  an  opinion,  because  the  State  of  Nebraska  is  not  shown 
to  have  taken  any  action  affecting  the  condition  of  this  plaintiff. 
See  Chirac  v.  Chirac,  2  Wheat.  259;  Fellows  v.  Blacksmith,  19 
How.  366;  United  States  v.  Holliday,  3  Wall.  407,  420;  United 
States  I'.  Joseph,  94  U.  S.  614,  618. 

The  plaintiff,  not  being  a  citizen  of  the  United  States  under  the 
Fourteenth  Amendment  of  the  Constitution,  has  been  deprived  of 
no  right  secured  by  the  Fifteenth  Amendment,  and  cannot  main- 
tain this  action.  Judgment  affirmed. 

Harlan,  J.,  with  whom  concurred  Woods,  J.,  dissenting.  .  .  . 


556       CITIZENS    OF   THE   UNITED    STATES   AND    THEIR   PRIVILEGES. 

PRESSER  V.   ILLINOIS. 
Supreme  Court  of  the  United  States.     1886. 

[IIG  United  States,  252.]' 

Error  to  the  Supreme  Court  of  Illinois. 

The  Military  Code  of  Illinois,  art.  XI  (Laws  of  1879,  192), 
provided:  "  §  5.  It  shall  not  be  lawful  for  any  body  of  men  what- 
ever, other  than  the  regular  organized  volunteer  militia  of  this 
State  and  the  troops  of  the  United  States,  to  associate  themselves 
together  as  a  military  company  or  organization,  or  to  drill  or 
parade  with  arms  in  any  city,  or  town,  of  this  State,  without  the 
license  of  the  Governor  thereof,  which  license  may  at  any  time  be 
revoked.  ...  §  6.  Whoever  offends  against  the  provisions  of  the 
preceding  section,  or  belongs  to,  or  parades  with,  any  such  un- 
authorized body  of  men  with  arms  shall  be  punished  by  a  fine  not 
exceeding  the  sum  of  ten  dollars,  or  by  imprisonment  in  the  com- 
mon jail  for  a  term  not  exceeding  six  months,  or  both." 

In  the  Criminal  Court  of  Cook  County,  Presser  was  indicted 
under  the  statute.  A  motion  to  quash  the  indictment  was  over- 
ruled, and,  a  jury  being  waived,  Presser  was  found  guilty  and  was 
sentenced  to  a  fine.  Exceptions  were  reserved  to  the  ruling  upon 
the  motion  to  quash,  and  to  the  finding,  and  to  the  judgment. 
From  the  bill  of  exceptions  it  appeared  that  Presser  was  a  citizen 
of  the  United  States  and  of  Illinois,  and  a  voter,  and  that  he 
belonged  to  a  society  incorporated  under  the  laws  of  Illinois  for 
the  purpose,  among  other  things,  of  being  "  instructed  in  military 
and  gymnastic  exercises,"  and  that  he  marched  at  the  head  of  the 
society  in  the  streets  of  Chicago,  he  riding  on  horseback  with  a 
cavalry  sword  and  the  others  marching  with  rifles,  there  being  no 
license  from  the  Governor  of  Illinois  to  drill  or  parade  and  the 
society  being  no  part  of  the  regular  organized  militia  of  the  State 
and  no  part  of  the  troops  of  the  United  States.  The  Supreme 
Court  of  Illinois  affirmed  the  judgment. 

A.  C.  Stonj  and  another,  for  plaintiff  in  error;  and  George  Hunt, 
Attorney  General  of  Illinois,  contra. 

Woods,  J.,  delivered  the  opinion  of  the  court.  ... 

The  position  of  the  plaintiff  in  error  in  this  court  was,  that  the 
entire  statute  under  which  he  was  convicted  was  invalid  and  void, 
because  its  enactment  was  the  exercise  of  a  power  by  the  legislature 

1  The  statement  has  been  rewritten.  —  Ed. 


PRESSER  V.   ILLINOIS.  557 

of  Illinois  forbidden  to  the  States  by  the  Constitution  of  the  United 
States.  .  .  . 

We  have  not  found  it  necessary  to  consider  or  decide  the  question 
thus  raised,  as  to  the  validity  of  the  entire  Military  Code  of 
Illinois.  .  .  . 

The  two  sections  upon  which  the  indictment  against  the  plaintiff 
in  error  is  based  may  be  separated  from  the  residue  of  the  Code, 
and  stand  upon  their  own  independent  provisions.  These  sections 
might  have  been  left  out  of  the  Military  Code  and  put  in  an  act  by 
themselves,  and  the  act  thus  constituted,  and  the  residue  of  the 
Military  Code,  would  have  been  coherent  and  sensible  acts.  .  .  . 

This  view  disposes  of  the  objection  to  the  judgment  of  the  Su- 
preme Court  of  Illinois,  which  judgment  was  in  effect  that  the 
legislation  on  which  the  indictment  is  based  is  not  invalid  by 
reason  of  the  provisions  of  the  Constitution  of  the  United  States, 
which  vest  Congress  with  power  to  raise  and  support  armies,  and 
to  provide  for  calling  out,  organizing,  arming  and  disciplining  the 
militia,  and  governing  such  part  of  them  as  may  be  employed  in 
the  service  of  the  United  States,  and  that  provision  which  declares 
that  "  no  State  shall  without  the  consent  of  Congress  .  .  .  keep 
troops  ...  in  time  of  peace." 

We  are  next  to  inquire  whether  the  5th  and  Gth  sections  of 
article  XI  of  the  Military  Code  are  in  violation  of  the  other  pro- 
visions of  the  Constitution  of  the  United  States  relied  on  by  the 
plaintiff  in  error.  The  first  of  these  is  the  Second  Amendment, 
which  declares:  "  A  well  regulated  militia  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed." 

We  think  it  clear  that  the  sections  under  consideration,  which 
only  forbid  bodies  of  men  to  associate  together  as  military  organ- 
izations, or  to  drill  or  parade  ^\^th  arms  in  cities  and  towns  unless 
authorized  by  law,  do  not  infringe  the  right  of  the  people  to  keep 
and  bear  arms.  But  a  conclusive  answer  to  the  contention  that 
this  amendment  prohibits  the  legislation  in  question  Hes  in  the  fact 
that  the  amendment  is  a  limitation  only  upon  the  power  of  Congress 
and  the  National  government,  and  not  upon  that  of  the  States.  .  .  . 

It  is  undoubtedly  true  that  all  citizens  capable  of  bearing  arms 
constitute  the  reserved  military  force  or  reserve  militia  of  the 
United  States  as  well  as  of  the  States,  and,  in  view  of  this  preroga- 
tive of  the  general  government,  as  well  as  of  its  general  powers,  the 
States  cannot,  even  laying  the  constitutional  provision  in  question 
out  of  view,  prohibit  the  people  from  keeping  and  bearing  arms,  so 


558       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR   PRIVILEGES. 

as  to  deprive  the  United  States  of  their  rightful  resource  for  main- 
taining  the  pubhc  security,  and  disable  the  people  from  performing 
their  duty  to  the  general  government.  But,  as  already  stated,  we 
think  it  clear  that  the  sections  under  consideration  do  not  have 
this  effect. 

The  plaintiff  in  error  next  insists  that  the  sections  of  the  Military 
Code  of  Illinois,  under  which  he  was  indicted,  are  an  invasion  of 
that  clause  of  the  first  section  of  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States  which  declares:  "  No  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States." 

It  is  only  the  privileges  and  immunities  of  citizens  of  the  United 
States  that  the  clause  relied  on  was  intended  to  protect.  A  State 
may  pass  laws  to  regulate  the  privileges  and  immunities  of  its  own 
citizens,  provided  that  in  so  doing  it  does  not  abridge  their  privi- 
leges and  immunities  as  citizens  of  the  United  States.  The  inquiry 
is,  therefore,  pertinent,  what  privilege  or  immunity  of  a  citizen  of 
the  United  States  is  abridged  by  sections  5  and  6  of  Article  XI  (^ 
the  Military  Code  of  Illinois  ? 

The  plaintiff  in  error  was  not  a  member  of  the  organized  volu"fc, 
teer  militia  of  the  State  of  Illinois,  nor  did  he  belong  to  the  troops 
of  the  United  States  or  to  any  organization  under  the  militia  law  of 
the  United  States.  On  the  contrary,  the  fact  that  he  did  rot 
belong  to  the  organized  militia  or  the  troops  of  the  United  States 
was  an  ingredient  in  the  offense  for  which  he  was  convicted  an^ 
sentenced.  The  question  is,  therefore,  had  he  a  right  as  a  citizen 
of  the  United  States,  in  disobedience  of  the  State  law,  to  associate 
with  others  as  a  military  company,  and  to  drill  and  parade  with 
arms  in  the  towns  and  cities  of  the  State  ?  If  the  plaintiff  in  error 
has  any  such  privilege  he  must  be  able  to  point  to  the  provision 
of  the  Constitution  or  statutes  of  the  United  States  by  which  it  is 
conferred.  For,  as  was  said  by  this  court  in  United  States  v. 
Cruikshank,  92  U.  S.  542,  550,  551,  the  government  jf  the  United 
States,  although  it  is  "  within  the  scope  of  its  powers  supreme  and 
above  the  States,"  "  can  neither  grant  nor  secure  to  its  citizens  any 
right  or  privilege  not  expressly  or  by  implication  plrced  under  its 
jurisdiction."  "  All  that  cannot  be  so  granted  or  ^o  secured  are 
left  to  the  exclusive  protection  of  the  States." 

We  have  not  been  referred  to  any  statute  of  the  United  States 
which  confers  upon  the  plaintiff  in  error  the  privilege  which  he 
asserts.  The  only  clause  in  the  Constitution  which,  upon  anj 
pretence,  could  be  said  to  have  any  relation  whatever  to  his  right 


PRESSER    V.    ILLINOIS.  559 

to  associate  \sath  others  as  a  militarj^  company  is  found  in  the  First 
Amenchnent,  which  declares  that  ''  Congress  shall  make  no  law 
.  .  .  abridging  .  .  .  the  right  of  the  people  peaceably  to  assemble 
and  to  petition  the  government  for  a  redress  of  grievances."  This 
is  a  right  which  it  was  held  in  United  States  v.  Cruikshank,  above 
cited,  was  an  attribute  of  national  citizenship,  and,  as  such,  under 
the  protection  of,  and  guaranteed  by,  the  United  States.  But  it 
was  held  in  the  same  case  that  the  right  peaceably  to  assemble  was 
not  protected  by  the  clause  referred  to,  unless  the  purpose  of  the 
assembly  was  to  petition  the  government  for  a  redress  of  grievances. 

The  right  voluntarily  to  associate  together  as  a  military^  company 
or  organization,  or  to  drill  or  parade  \s-ith  arms,  without,  and  inde- 
pendent of,  an  act  of  Congress  or  law  of  the  State  authorizing  the 
same,  is  not  an  attribute  of  national  citizenship.  Military  organ- 
ization and  military  drill  and  parade  under  arms  are  subjects 
especially  under  the  control  of  the  government  of  every  country. 
They  cannot  be  claimed  as  a  right  independent  of  law.  Under  our 
political  system  they  are  subject  to  the  regulation  and  control  of 
the  State  and  Federal  governments,  acting  in  due  regard  to  their 
respective  prerogatives  and  powers.  The  Constitution  and  laws 
of  the  United  States  will  be  searched  in  vain  for  any  support  to  the 
view  that  these  rights  are  privileges  and  immunities  of  citizens  of 
the  United  States  independent  of  some  specific  legislation  on  the 
subject. 

It  cannot  be  successfully  questioned  that  the  State  governments, 
unless  restrained  by  their  own  Constitutions,  have  the  power  to 
regulate  or  prohibit  associations  and  meetings  of  the  people, 
except  in  the  case  of  peaceable  assemblies  to  perform  the  duties  or 
exercise  the  privileges  of  citizens  of  the  United  States;  and  have 
also  the  power  to  control  and  regulate  the  organization,  drilling, 
and  parading  of  military  bodies  and  associations,  except  when  such 
bodies  or  associations  are  authorized  by  the  militia  laws  of  the 
United  States.  The  exercise  of  this  power  by  the  States  is  neces- 
sary to  the  public  peace,  safety  and  good  order.  To  deny  the 
power  would  be  to  deny  the  right  of  the  State  to  disperse  assem- 
blages organized  for  sedition  and  treason,  and  the  right  to  suppress 
armed  mobs  bent  on  riot  and  rapine.  .  .  . 

The  argument  of  the  plaintiff  in  error  that  the  legislation  men- 
tioned deprives  him  of  either  life,  liberty  or  property  without  due 
process  of  law,  or  that  it  is  a  bill  of  attainder  or  ex  post  facto  law,  is 
so  clearly  untenable  as  to  require  no  discussion. 


560       CITIZENS    OF   THE    UNITED    STATES   AND   THEIR    PRIVILEGES. 

It  is  next  contended  by  the  plaintiff  in  error  that  sections  5  and 
6  of  Art.  XI  of  the  Military  Code,  under  which  he  was  indicted, 
are  in  conflict  with  the  acts  of  Congress  for  the  organization  of  the 
militia.  But  this  position  is  based  on  what  seems  to  us  to  be  an 
unwarranted  construction  of  the  sections  referred  to.  It  is  dear 
that  their  object  was  to  forbid  voluntary  military  associations, 
unauthorized  by  law,  from  organizing  or  drilling  and  parading 
with  arms  in  the  cities  or  towns  of  the  State,  and  not  to  interfere 
with  the  organization,  arming  and  drilling  of  the  militia  under  the 
authority  of  the  acts  of  Congress.  If  the  object  and  effect  of  the 
sections  were  in  irreconcilable  conflict  w-ith  the  acts  of  Congress 
they  would  of  course  be  invalid.  But  it  is  a  rule  of  construction 
that  a  statute  must  be  interpreted  so  as,  if  possible,  to  make  it 
consistent  with  the  Constitution  and  the  paramount  law.  Parsons 
V.  Bedford,  3  Pet.  433;  Grenada  County  Supervisors  v.  Brogden, 
112  U.  S.  261;  Marshall  v.  Grimes,  41  Mississippi,  27.  .  .  . 

The  plaintiff  in  error  further  insists  that  the  organization  of  the 
Lehr  und  Wehr  Verein  as  a  corporate  body,  under  the  general 
corporation  law  of  the  State  of  Illinois,  was  in  effect  a  license  from 
the  governor,  within  the  meaning  of  section  5  of  Article  XI  of  the 
Military  Code,  and  that  such  corporate  body  fell  within  the  excep- 
tion of  the  same  section  "  of  students  in  educational  institutions 
where  military  science  is  a  part  of  the  course  of  instruction." 

In  respect  to  these  points  we  have  to  say  that  they  present  no 
Federal  question.  It  is  not,  therefore,  our  j^rovince  to  consider 
or  decide  them.     Murdock  v.  Memphis,  20  Wall.  590. 

All  the  Federal  questions  presented  by  the  record  were  rightly 
decided  by  the  Supreme  Court  of  Illinois. 

Judgment  affirmed. 


UNITED    STATES   V.    WONG    KIM    ARK.  561 

UNITED   STATES  v.   WONG   KIM  ARK. 

Supreme  Court  of  the  United  States.     1898. 

[169  United  States,  649.]  ^ 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Northern  District  of  Cahfornia. 

A  writ  of  habeas  corpus  was  issued  by  the  District  Court  to  the 
collector  of  customs  at  San  Francisco,  in  behalf  of  Wong  Kim 
Ark,  who,  on  returning  from  a  visit  to  China,  was  by  the  collector 
refused  permission  to  land  and  was  restrained  of  his  liberty  by  the 
collector  and  by  the  steamship  company  acting  under  instructions 
from  the  collector.  At  the  hearing  the  United  States  was  per- 
mitted to  intervene  in  opposition  to  the  writ.  The  court  ordered 
the  petitioner  discharged  (71  Fed.  382);  and  thereupon  the  United 
States  appealed  to  this  court  and  the  appellee  was  admitted  to  bail. 

Conrad,  Solicitor  General,  and  another,  for  the  appellants;  and 
Maxwell  Evarts  and  others,  contra. 

Gray,  J.,  .  ,  .  delivered  the  opinion  of  the  court. 

The  facts  of  this  case,  as  agreed  bj^  the  parties,  are  as  follows: 
Wong  Kim  Ark  was  born  in  1873  in  the  city  of  San  Francisco,  in 
the  State  of  California  and  United  States  of  America,  and  was  and 
is  a  laborer.  His  father  and  mother  were  persons  of  Chinese 
descent,  and  subjects  of  the  Emperor  of  China;  they  were  at  the 
time  of  his  birth  domiciled  residents  of  the  United  States,  having 
previously  established  and  still  enjoying  a  permanent  domicil  and 
residence  therein  at  San  Francisco;  they  continued  to  reside  and 
remain  in  the  United  States  until  1890,  when  they  departed  for 
China;  and  during  all  the  time  of  their  residence  in  the  United 
States  they  were  engaged  in  business,  and  were  never  employed  in 
any  diplomatic  or  official  capacity  under  the  Emperor  of  China. 
Wong  Kim  Ark,  ever  since  his  birth,  has  had  but  one  residence,  to 
wit,  in  California,  ^^^thin  the  United  States,  and  has  there  resided, 
claiming  to  be  a  citizen  of  the  United  States,  and  has  never  lost  or 
changed  that  residence,  or  gained  or  acquired  another  residence; 
and  neither  he,  nor  his  parents  acting  for  him,  ever  renounced  his 
allegiance  to  the  United  States,  or  did  or  committed  any  act  or 
thing  to  exclude  him  therefrom.  In  1890  (when  he  must  have 
been  about  seventeen  years  of  age)  he  departed  for  China  on  a 
temporary  visit  and  with  the  intention  of  returning  to  the  United 
States,  and  did  return  thereto  by  sea  in  the  same  year,  and  was 

1  The  statement  has  been  rewTitten.  —  Ed. 


562       CITIZENS    OF   THE    UNITED    STATES    AND    THEIR    PRIVILEGES. 

permitted  by  the  collector  of  customs  to  enter  the  United  States, 
upon  the  sole  ground  that  he  was  a  native-born  citizen  of  the  United 
States.  After  such  return,  he  remained  in  the  United  States, 
claiming  to  be  a  citizen  thereof,  until  1894,  when  he  (being  about 
twenty-one  years  of  age,  but  whether  a  little  above  or  a  little 
under  that  age  does  not  appear)  again  departed  for  China  on  a 
temporary  visit  and  with  the  intention  of  returning  to  the  United 
States;  and  he  did  return  thereto  by  sea  in  August,  1895,  and 
applied  to  the  collector  of  customs  for  permission  to  land ;  and  was 
denied  such  permission,  upon  the  sole  ground  that  he  was  not  a 
citizen  of  the  United  States. 

It  is  conceded  that,  if  he  is  a  citizen  of  the  United  States,  the 
acts  of  Congress,  known  as  the  Chinese  Exclusion  Acts,  prohibiting 
persons  of  the  Chinese  race,  and  especially  Chinese  laborers,  from 
coming  into  the  United  States,  do  not  and  cannot  apply  to  him.' .  .  . 

The  Fourteenth  Amendment  affirms  the  ancient  and  fundamen- 
tal rule  of  citizenship  by  birth  within  the  territory,  in  the  allegiance 
and  under  the  protection  of  the  country,  including  all  children 
here  born  of  resident  aliens,  with  the  exceptions  or  qualifications 
(as  old  as  the  rule  itself)  of  children  of  foreign  sovereigns  or  their 
ministers,  or  born  on  foreign  public  ships,  or  of  enemies  \Nithin  and 
during  a  hostile  occupation  of  part  of  our  territory',  and  with  the 
single  additional  exception  of  children  of  members  of  the  Indian 
tribes  owing  direct  allegiance  to  their  several  tribes.  The  Amend- 
ment, in  clear  words  and  in  manifest  intent,  includes  the  children 
born,  within  the  territory  of  the  United  States,  of  all  other  persons, 
of  whatever  race  or  color,  domiciled  within  the  United  States. 
Every  citizen  or  subject  of  another  country,  while  domiciled  here, 
is  within  the  allegiance  and  the  protection,  and  consequently 
subject  to  the  jurisdiction,  of  the  United  States.  ...  It  can 
hardly  be  denied  that  an  alien  is  completelj^  subject  to  the  political 
jurisdiction  of  the  countr}'  in  which  he  resides  —  seeing  that,  as 
said  by  Mr.  Webster,  when  Secretary  of  State,  in  his  Report  to  the 
President  on  Thrasher's  Case  in  1851,  and  since  repeated  by  this 
court,  "  independently  of  a  residence  with,  intention  to  continue 
such  residence ;  independently  of  any  domiciliation;  independently 
of  the  taking  of  any  oath  of  allegiance  or  of  renouncing  any  former 
allegiance,  it  is  well  known  that,  by  the  public  law,  an  alien,  or  a 
stranger  born,  for  so  long  a  time  as  he  continues  within  the  do- 
minions of  a  foreign  government,  owes  obedience  to  the  laws  of 

1  The  Chinese  Exclusion  Acts  referred  to  may  be  found  in  22  U.  S.  Stats.  58; 
23  id.  115;  25  id.  476,  504;  27  id.  25;  and  28  id.  390.  —  Ed. 


TINITED    STATES   V.    WONG   KIM    ARK. 


563 


that  government,  and  may  be  punished  for  treason,  or  other  crimes, 
as  a  native-born  subject  might  be,  unless  his  case  is  varied  by  some 
treaty  stipulations."  Ex.  Doc.  H.  R.  No.  10,  1st  sess.,  32d  Con- 
gress, p.  4;  6  Webster's  Works,  526;  United  States  v.  Carlisle,  16 
Wall.  147,  155;  Calvin's  Case,  7  Rep.  6a;  EUesmere  on  Postnati, 
63;   1  Hale  P.  C.  62;  4  Bl.  Com.  74,  92.  .  .  . 

Order  affirmed. 

Fuller,  C.  J.,  with  whom  concurred  Harlan,  J.,  dissenting.  .  .  . 

McKenna,  J.,  not  having  been  a  member  of  the  court  when 
this  case  was  argued  took  no  part  in  the  decision. 


564  PROCEDURE 


Section  II. 

Privileges  and  Immunities  and  Due  Process  as  Related  to 
Procedure  } 

DEN   exdem.   MVRR AY  et  al.    v.    IIOBOKEN   LAND 
AND   IMPROVEMENT  CO. 

Supreme  Court  of  the  United  States.     1856. 
[18  Howard,  272.]  = 

From  the  Circuit  Court  of  the  United  States  for  the  District  of 
New  Jersey,  upon  a  certificate  of  division  in  opinion. 

Van  Winkle  and  Wood,  for  plaintiffs ;  and  Zahrinski  and  others, 
contra. 

Curtis,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

It  is  an  action  of  ejectment,  in  which  both  parties  claim  title 
under  Samuel  Swartwout  —  the  plaintiffs,  under  the  levy  of  an 
execution  on  the  10th  day  of  April,  1839,  and  the  defendants, 
under  a  sale  made  by  the  marshal  of  the  United  States  for  the 
district  of  New  Jersey,  on  the  1st  day  of  June,  1839  —  by  virtue 
of  what  is  denominated  a  distress  warrant,  issued  by  the  solicitor 
of  the  treasury  under  the  act  of  congress  of  May  15,  1820,  entitled, 
"  An  act  providing  for  the  better  organization  of  the  treasury 
department."  This  act  having  provided,  by  its  first  section,  that 
a  lien  for  the  amount  due  should  exist  on  the  lands  of  the  debtor 
from  the  time  of  the  lev>'  and  record  thereof  in  the  office  of  the 
district  court  of  the  United  States  for  the  proper  district,  and  the 
date  of  that  levy  in  this  case  being  prior  to  the  date  of  the  judgment 
under  which  the  plaintiff's  title  was  made,  the  question  occurred 
in  the  circuit  court,  "  whether  the  said  warrant  of  distress  in  the 
special  verdict  mentioned,  and  the  proceedings  thereon  and  an- 
terior thereto,  under  which  the  defendants  claim  title,  are  sufficient, 
under  the  Constitution  of  the  United  States  and  the  law  of  the  land, 
to  pass  and  transfer  the  title  and  estate  of  the  said  Swartwout  in 
and  to  the  premises  in  question,  as  against  the  lessors  of  the 
plaintiff."  Upon  this  question,  the  judges  being  of  opposite 
opinions,  it  was  certified  to  this  court,  and  has  been  argued  by 
counsel. 

1  Other  cases  involving  this  topic  may  be  found  elsewhere  in  this  chapter, 
and  particularly  in  the  section  on  Race  Discrimination.  —  Ed. 

2  The  reporter's  statement  has  been  omitted.  —  Ed. 


DEN,    d.    MURRAY,    V.    HOBOKEX    L.    &    I.    CO.  565 

No  objection  has  been  taken  to  the  warrant  on  account  of  any 
defect  or  irregularity  in  the  proceedings  which  preceded  its  issue. 
It  is  not  denied  that  they  were  in  conformity  uith  the  require- 
ments of  the  act  of  congress.  The  special  verdict  finds  tha,t 
Swartwout  was  collector  of  the  customs  for  the  port  of  New  York 
for  eight  years  before  the  29th  of  March,  1838:  that,  on  the  10th 
of  November,  1838,  his  account,  as  such  collector,  was  audited  by 
the  first  auditor,  and  certified  by  the  first  comptroller  of  the 
treasury;  and  for  the  balance  thus  found,  amounting  to  the  sum  of 
$1,374, 119i|  the  warrant  in  question  was  issued  by  the  sohcitor  of 
the  treasury.  Its  valicUty  is  denied  by  the  plaintiffs,  upon  the 
ground  that  so  much  of  the  act  of  congress  as  authorized  it,  is  in 
conflict  wdth  the  Constitution  of  the  United  States. 

In  support  of  this  position,  the  plaintiff  relies  on  that  part  of 
the  first  section  of  the  third  article  of  the  Constitution  which  re- 
quires the  jutUcial  power  of  the  United  States  to  be  vested  in  one 
supreme  court  and  in  such  inferior  courts  as  congress  may,  from 
time  to  time,  ordain  and  establish;   the  judges  whereof  shall  hold 
their  offices  during  good  beha^-ior,  and  shall,  at  stated  tunes,  receive 
for  their  services  a  compensation,  which  shall  not  be  cUminished 
during  their  continuance  in  office.     Also,  on  the  second  section  of 
the  same  article,  which  declares  that  the  judicial  power  shall 
extend  to  controversies  to  which  the  United  States  shall  be  a  party. 
It  must  be  achnitted  that,  if  the  auditing  of  this  account,  and  the 
ascertainment  of  its  balance,  and  the  issuing  of  this  process,  was  an 
exercise  of  the  judicial  power  of  the  United  States,  the  proceeding 
was  void;  for  the  officers  who  performed  these  acts  could  exercise 
no  part  of  that  judicial  power.     They  neither  constituted  a. court 
of  the  United  States,  nor  were  they,  or  either  of  them,  so  connected 
^v^th  any  such  court  as  to  perform  even  any  of  the  ministerial  duties 
which  arise  out  of  judicial  proceecUngs. 

The  question,  whether  these  acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry^  raised  by  the  further  objection  of  the  plaintiff,  that  the 
effect  of  the  proceecUngs  authorized  by  the  act  in  question  is  to 
deprive  the  party,  against  whom  the  warrant  issues,  of  his  liberty 
and  property,  "  without  due  process  of  law  ";  and,  therefore,  is  in 
conflict  wdth  the  fifth  article  of  the  amendments  of  the  Constitu- 
tion. 

Taking  these  two  objections  together,  they  raise  the  questions, 
whether,  under  the  Constitution  of  the  United  States,  "a  collector 
of  the  customs,  from  whom  a  balance  of  account  has  been  found  to 


566  PROCEDURE. 

be  due  by  accounting  officers  of  the  treasury,  designated  for  thau 
purpose  by  law,  can  be  deprived  of  his  liberty,  or  property,  in  order 
to  enforce  payment  of  that  balance,  without  the  exercise  of  the 
judicial  power  of  the  United  States,  and  yet  by  due  process  of  law, 
within  the  meaning  of  those  terms  in  the  Constitution;  and  if  so, 
then,  secondly,  whether  the  warrant  in  question  was  such  due 
process  of  law  ? 

The  words,  ''  due  process  of  law,"  were  undoubtedly  intended  to 
convey  the  same  meaning  as  the  words,  "  by  the  law  of  the  land," 
in  Magna  Charta.  Lord  Coke,  in  his  commentary  on  those  words 
(2  Inst.  50),  says  they  mean  due  process  of  law.  The  constitutions 
which  had  been  adopted  by  the  several  States  before  the  formation 
of  the  federal  Constitution,  following  the  language  of  the  great 
charter  more  closely,  generally  contained  the  words,  "  but  by  the 
judgment  of  his  peers,  or  the  law  of  the  land."  The  ordinance  of 
congress  of  July  13,  -1787,  for  the  goverrmient  of  the  territory  of 
the  United  States  northwest  of  the  River  Ohio,  used  the  same 
words. 

The  Constitution  of  the  United  States,  as  adopted,  contained  the 
provision,  that  "  the  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury."  When  the  fifth  article  of  amendment 
containing  the  words  now  in  question  was  made,  the  trial  by  jury 
in  criminal  cases  had  thus  already  been  provided  for.  By  the  sixth 
and  seventh  articles  of  amendment,  further  special  provisions  were 
separately  made  for  that  mode  of  trial  in  civil  and  criminal  cases. 
To  have  followed,  as  in  the  state  constitutions,  and  in  the  ordi- 
nance of  1787,  the  words  of  Magna  Charta,  and  declared  that  no 
person  shall  be  deprived  of  his  life,  liberty,  or  property  but  by  the 
judgment  of  his  peers  or  the  law  of  the  land,  would  have  been  in 
part  superfluous  and  inappropriate.  To  have  taken  the  clause, 
"  law  of  the  land,"  without  its  immediate  context,  might  possibly 
have  given  rise  to  doubts,  which  would  be  effectually  dispelled  by 
using  those  words  which  the  great  commentator  on  Magna  Charta 
had  declared  to  be  the  true  meaning  of  the  phrase,  "  law  of  the 
land,"  in  that  instrument,  and  which  were  undoubtedly  then 
received  as  their  true  meaning. 

That  the  warrant  now  in  question  is  legal  process,  is  not  denied. 
It  was  issued  in  conformity  with  an  act  of  Congress.  But  is  it 
"  due  process  of  law  "  ?  The  Constitution  contains  no  description 
of  those  processes  which  it  was  intended  to  allow  or  forbid.  It 
does  not  even  declare  what  principles  are  to  be  applied  to  ascertain 
whether  it  be  due  process.        It  is  manifest  that  it  was  not  left  to 


DEN,   d.   MURRAY,    V.   HOBOKEN   L.    &   I.   CO. 


56? 


the  legislative  power  to  enact  any  process  which  might  be  devised. 
The  article  is  a  restraint  on  the  legislative  as  well  as  on  the  executive 
and  judicial  powers  of  the  government,  and  cannot  be  so  construed 
as  to  leave  congress  free  to  make  any  process  "  due  process  of  law," 
by  its  mere  will.      To  what  principles,  then,  are  we  to  resort  to 
ascertain  whether  this  process,  enacted  by  congress,  is  due  process  ? 
To  this  the  answer  must  be  twofold.     We  must  examine  the  Con- 
stitution  itself,  to  see  whether  this  process  be  in  conflict  with  any  of 
its  provisions.     If  not  found  to  be  so,  we  must  look  to  those  settled 
usages  and  modes  of  proceeding  existing  in  the  common  and 
statute  law  of  England,  before  the  emigration  of  our  ancestors, 
and  which  are  shown  not  to  have  been  unsuited  to  their  civil  and 
political  condition  by  having  been  acted  on  by  them  after  the 
settlement  of  this  country.      We  apprehend  there  has  been  no 
period,  since  the  establishment  of  the  English  monarchy,  when 
there  has  not  been,  by  the  law  of  the  land,  a  summary  method  for 
the  recovery  of  debts  due  to  the  crown,  and  especially  those  due 
from  receivers  of  the  revenues.  ... 

The  methods  of  ascertaining  the  existence  and  amount  of  such 
debts,  and  compelling  their  pajTuent,  have  varied  ^^^dely  from  the 
usual  course  of  the  common  law  on  other  subjects;  and  .  .  .  ,  as 
respects  such  debts  due  from  such  officers,  ''  the  law  of  the  land  " 
authorized  the  employment  of  auditors,  and  an  inquisition  without 
notice,  and  a  species  of  execution  bearing  a  very  close  resemblance 
to  what  is  termed  a  warrant  of  distress  in  the  act  of  1820,  now  in 

question. 

It  is  certain  that  this  diversity  in  "  the  law  of  the  land  between 
public  defaulters  and  ordinary  debtors  was*  understood  in  this 
country,  and  entered  into  the  legislation  of  the  colonies  and  prov- 
inces, and  more  especially  of  the  States,  after  the  declaration  of 
independence  and  before  the  formation  of  the  Constitution  of  the 
United  States.  Not  only  was  the  process  of  distress  in  nearly  or 
quite  universal  use  for  the  collection  of  taxes,  but  what  was  gen- 
erally termed  a  warrant  of  distress,  running  against  the  body, 
goods,  and  chattels  of  defaulting  receivers  of  public  money,  was 
issued  to  some  pubUc  officer,  to  whom  was  committed  the  power  to 
ascertain  the  amount  of  the  default,  and  by  such  warrant  proceed 
to  collect  it.     Without  a  wearisome  repetition  of  details,  it  will  be 

sufficient  to  give  one  section  from  the  Massachusetts  act  of  1786 

Laws  Massachusetts,  vol.  i.,  p.  266.  Provisions  not  distinguish- 
able from  these  in  principle  may  be  found  in  the  act  of  Connecticut 
(Revision  of   1784,  p.  198);    of  Pennsylvania,    1782  (2  Laws  of 


568  PROCEDURE. 

Penn.  13);  of  South  Carolina,  1788  (5  Stats,  of  S.  C.  55);  New 
York,  1788  (1  Jones  &  Varick's  Laws,  34);  see  also  1  Henning's 
Stats,  of  Virginia,  319,  343;  12  Ibid.  562;  Laws  of  Vermont, 
(1797,  1800),  340.  Since  the  formation  of  the  Constitution  of  the 
United  States,  other  States  have  passed  similar  laws.  See  7  Louis. 
An.  R.  192.  Congress,  from  an  early  period,  and  in  repeated 
instances,  has  legislated  in  a  similar  manner.  By  the  fifteenth 
section  of  the  "  Act  to  lay  and  collect  a  cUrect  tax  \\athin  the 
United  States,"  of  July  14,  1798,  the  supervisor  of  each  district  was 
authorized  and  required  to  issue  a  warrant  of  distress  against  any 
delinquent  collector  and  his  sureties,  to  be  levied  upon  the  goods 
and  chattels,  and  for  want  thereof  upon  the  body  of  such  collector; 
and,  failing  of  satisfaction  thereby,  upon  the  goods  and  chattels 
of  the  sureties.  1  Stats,  at  Large,  602.  And  again,  in  1813 
(3  Stats,  at  Large,  33,  §  28),  and  1815  (3  Stats,  at  Large,  177,  §  33), 
the  comptroller  of  the  treasury  was  empowered  to  issue  a  similar 
warrant  against  collectors  of  the  customs  and  their  sureties.  This 
legislative  construction  of  the  Constitution,  commencing  so  early  in 
the  government,  when  the  first  occasion  for  this  manner  of  proceed- 
ing arose,  continued  throughout  its  existence,  and  repeatedly 
acted  on  by  the  judiciary  and  the  executive,  is  entitled  to  no 
inconsiderable  weight  upon  the  question  whether  the  proceeding 
adopted  b}^  it  was  "  due  process  of  law."  Prigg  v.  Pennsylvania, 
16  Pet.  621;  United  States  v.  Nourse,  9  Pet.  8;  Randolph's  case, 
2  Brock.  447;  Nourse's  case,  4  Cranch,  C.  C.  R.  151;  Bullock's 
case  (cited  6  Pet.  485,  note). 

Tested  by  the  common  and  statute  law  of  England  prior  to  the 
emigration  of  our  ancestors,  and  by  the  laws  of  many  of  the  States 
at  the  time  of  the  adoption  of  this  amendment,  the  proceedings 
authorized  by  the  act  of  1820  cannot  be  denied  to  be  due  process  of 
law,  when  apphed  to  the  ascertainment  and  recovery  of  balances 
due  to  the  government  from  a  collector  of  customs,  unless  there 
exists  in  the  Constitution  some  other  provision  which  restrains 
congress  from  authorizing  such  proceedings.  For,  though  "  due 
process  of  law  "  generally  implies  and  includes  actor,  reus,  judex, 
regular  allegations,  opportunity  to  answer,  and  a  trial  according  to 
some  settled  course  of  judicial  proceedings  (2  Inst.  47,  50;  Hoke  v. 
Henderson,  4  Dev.  N.  C.  Rep.  15;  Taylor  v.  Porter,  4  Hill,  146; 
Van  Zandt  v.  Waddel,  2  Yerger,  260;  State  Bank  v.  Cooper,  Ibid. 
599;  Jones's  Heirs  v.  Perry,  10  Ibid.  59;  Greene  v.  Briggs,  1  Curtis, 
311),  this  yet,  is  not  universally  true.  There  may  bje,  and  we  have 
seen  that  there  are  cases,  under  the  law  of  England  after  Magna 


DEN,   d.   MURRAY,   V.   HOBOKEN   L.    &    I.    CO. 


569 


Charia,  and  as  it  was  brought  to  this  country  and  acted  on  here,  in 
which  process,  in  its  nature  final,  issues  against  the  body,  lands, 
and  goods  of  certain  public  debtors  without  any  such  trial;  and 
this  brings  us  to  the  question,  whether  those  provisions  of  the 
Constitution  which  relate  to  the  judicial  power  are  incompatible 
wdth  these  proceedings  ? 

That  the  auditing  of  the  accounts  of  a  receiver  of  pubhc  moneys 
may  be,  in  an  enlarged  sense,  a  judicial  act,  must  be  admitted. 
So  are  all  those  administrative  duties  the  performance  of  which 
involves  an  inquiry  into  the  existence  of  facts  and  the  application 
to  them  of  rules  of  law.     In  this  sense  the  act  of  the  President  in 
calling  out  the  militia  under  the  act  of  1795,  12  Wheat.  19,  or  of  a 
commissioner  who  makes  a  certificate  for  the  extradition  of  a 
criminal,  under  a  treaty,  is  judicial.      But  it  is  not  sufficient  to 
bring  such  matters  under  the  judicial  power,  that  they  involve  the 
exercise  of  judgment  upon  law  and  fact.     United  States  v.  Ferreira, 
13  How.  40.     It  is  necessary  to  go  further,  and  show  not  only  that 
the  adjustment  of  the  balances  due  from  accounting  officers  may 
be,  but  from  their  nature  must  be,  controversies  to  which  the 
Uikted  States  is  a  party,  within  the  meaning  of  the  second  section 
of  the  third  article  of  the  Constitution.    We  do  not  doubt  the  power 
of  congress  to  provide  by  law  that  such  a  question  shall  form  the 
subject-matter  of  a  suit  in  which  the  judicial  power  can  be  exerted. 
The  act  of  1820  makes  such  a  provision  for  reviewing  the  decision  of 
the  accounting  officers  of  the  treasury.      But,  until  reviewed,  it 
is  final  and  binding;    and  the  question  is,  whether  its  subject- 
matter  is  necessarily,  and  without  regard  to  the  consent  of  congress, 
a  judicial  controversy.     And  we  are  of  opinion  it  is  not. 

Among  the  legislative  powers  of   congress  are  the  powers  to 
lay  and  collect  taxes,  duties,  imposts,  and  excises;  to  pay  the  debts, 
and  pro\ade  for  the  common  defense  and  welfare  of  the  Umted 
States,  to  raise  and  support  armies;    to  provide  and  maintain  a 
nav>^  and  to  make  all  laws  which  may  be  necessary  and  proper  for 
carrVing  into  execution  those  powers.     What  officers  should  be 
appointed  to  collect  the  revenue  thus  authorized  to  be  raised,  and 
to  disburse  it  in  payment  of  the  debts  of  the  United  States;  what 
duties  should  be  required  of  them;  when  and  how,  and  to  whom 
they  should  account,  and  what  security  they  should  furmsh,  and 
to  what  remedies  they  should  be  subjected  to  enforce  the  proper 
discharge  of  their  duties,  congress  was  to  determine.      In  the 
exercise  of  their  powers,  they  have  required  collectors  of  customs 
to  be  appointed;  made  it  incumbent  on  them  to  account,  from  time 


570  PROCEDURE. 

to  time,  with  certain  officers  of  the  treasury  department,  and  to 
furnish  sureties,  by  bond,  for  the  payment  of  all  balances  of  the 
public  money  which  may  become  due  from  them.  And  by  the 
act  of  1820,  now  in  question,  they  have  undertaken  to  provide 
summary  means  to  compel  these  officers  —  and  in  case  of  their 
default,  their  sureties  —  to  pay  such  balances  of  the  public  money 
as  may  be  in  their  hands. 

The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrjdng  that  power  into 
effect,  includes  all  known  and  appropriate  means  of  effectually 
collecting  and  disbursing  that  revenue,  unless  some  such  means 
should  be  forbidden  in  some  other  part  of  the  Constitution.  The 
power  has  not  been  exhausted  by  the  receipt  of  the  money  by  the 
collector.  Its  purpose  is  to  raise  money  and  use  it  in  payment  of 
the  debts  of  the  government;  and,  whoever  may  have  possession 
of  the  public  money,  until  it  is  actually  disbursed,  the  power  to  use 
those  known  and  appropriate  means  to  secure  its  due  application 
continue. 

As  we  have  already  shown,  the  means  provided  by  the  act  of 
1820,  do  not  differ  in  principle  from  those  employed  in  England 
from  remote  antiquity  —  and  in  many  of  the  States,  so  far  as  we 
know  without  objection  —  for  this  purpose,  at  the  time  the  Con- 
stitution was  formed.  It  may  be  added,  that  probably  there 
are  few  governments  which  do  or  can  permit  their  claims  for  public 
taxes,  either  on  the  citizen  or  the  officer  employed  for  their  collec- 
;ion  or  disbursement,  to  become  subjects  of  judicial  controversy, 
according  to  the  course  of  the  law  of  the  land.  Imperative  neces- 
sity has  forced  a  distinction  between  such  claims  and  all  others, 
which  has  sometimes  been  carried  out  by  summary  methods  of  pro- 
ceeding, and  sometimes  by  systems  of  fines  and  penalties,  but  al- 
ways in  some  way  observed  and  yielded  to.  ,  .  . 

It  is  necessary  to  take  into  view  some  settled  rules. 

Though,  generally,  both  public  and  private  wrongs  are  redressed 
through  judicial  action,  there  are  more  summary  extra-judicial 
remedies  for  both.  An  instance  of  extra-judicial  redress  of  a  pri- 
vate wrong  is,  the  recapture  of  goods  by  their  lawful  owner;  of  a 
public  wrong,  by  a  private  person,  is  the  abatement  of  a  public 
nuisance;  and  the  recovery  of  public  dues  by  a  summary  process 
of  distress,  issued  by  some  public  officer  authorized  by  law,  is  an 
instance  of  redress  of  a  particular  kind  of  public  wrong,  by  the  act 
of  the  public  through  its  authorized  agents.  .  .  , 


DEN,    d.   MURRAY,    V.    HOBOKEN   L.    &   I.    CO.  571 

At  the  same  time  there  can  be  no  doubt  that  the  mere  question, 
whether  a  collector  of  the  customs  is  indebted  to  the  United  States, 
may  be  one  of  judicial  cognizance.  It  is  competent  for  the  United 
States  to  sue  any  of  its  debtors  in  a  court  of  law.  It  is  equally 
clear  that  the  United  States  may  consent  to  be  sued,  and  may 
yield  this  consent  upon  such  terms  and  under  such  restrictions  as  it 
may  think  just.  .  .  . 

When,  therefore,  the  act  of  1820  enacts,  that  after  the  levy  of 
the  distress  warrant  has  been  begun,  the  collector  may  bring  before 
a  district  court  the  question,  whether  he  is  indebted  as  recited  in 
the  warrant,  it  simply  waives  a  privilege  which  belongs  to  the 
government,  and  consents  to  make  the  legality  of  its  future  pro- 
ceed"ngs  dependent  on  the  judgment  of  the  court.  .  .  . 

It  was  further  urged  that,  by  thus  subjecting  the  proceeding  to 
the  determination  of  a  court,  it  did  conclusively  appear  that  there 
was  no  such  necessity  for  a  summary  remedy,  by  the  action  of  the 
executive  power,  as  was  essential  to  enable  congress  to  authorize 
this  mode  of  proceeding. 

But  it  seems  to  us  that  the  just  inference  from  the  entire  law  is, 
that  there  was  such  a  necessity  for  the  warrant  and  the  com- 
mencement of  the  levy,  but  not  for  its  completion,  if  the  collector 
should  interpose,  and  file  his  bill  and  give  security.  The  provision 
that  he  may  file  his  bill  and  give  security,  and  thus  arrest  the 
summary  proceedings,  only  proves  that  congress  thought  it  not 
necessary  to  pursue  them,  after  such  security  should  be  given, 
until  a  decision  should  be  made  by  the  court.  It  has  no  tendency 
to  prove  they  were  not,  in  the  judgment  of  congress,  of  the  highest 
necessity  under  all  other  circumstances;  and  of  this  necessity 
congress  alone  is  the  judge.  .  .  . 


572  PROCEDURE. 

WALKER   v.   SAUVINET. 

Supreme  Court  of  the  United  States.     1876. 

[92  United  States,  90.]  i 

Error  to  the  Supreme  Court  of  Louisiana. 

Article  XIII  of  the  Constitution  of  Louisiana  provided  that  "  all 
places  of  business  ...  for  which  a  license  is  required  .  .  .  shall 
be  deemed  places  of  a  public  character,  and  shall  be  open  .  .  . 
without  distinction  or  discrimination  on  account  of  race  or  color." 
The  act  of  Feb.  23,  1869,  provided  that  "  all  licenses  ...  to  per- 
sons engaged  in  business  .  .  .  shall  contain  the  express  condition 
that  the  place  of  business  .  .  .  shall  be  open  .  .  .  without  dis- 
tinction or  discrimination  on  account  of  race  or  color;  and  any 
person  who  shall  violate  the  condition  .  .  .  shall  .  .  .  be  punished 
by  forfeiture  of  his  license,  .  .  .  and,  moreover,  shall  be  liable  at 
the  suit  of  the  person  aggrieved  to  such  damages  as  he  shall  sustain 
thereby."  The  act  of  Feb.  27,  1871,  provided  that  ''  all  cases 
brought  .  .  .  under  the  provisions  of  the  article  thirteen  of  the 
Constitution  of  Louisiana,  or  under  the  provisions  of  any  acts  .  .  . 
to  enforce  the  said  article  thirteen,  .  .  .  shall  be  tried  by  the 
court,  or  by  a  jury  if  any  party  to  the  suit  prays  for  a  trial  by 
jury,"  and  that  "  if  the  jury  do  not  agree,  .  .  .  the  jury  shall  be 
discharged,  and  the  case  shall  be  immediately  submitted  to  the 
judge  upon  the  pleadings  and  evidence  already  on  file,  as  if  the 
case  had  been  originally  tried  without  the  intervention  of  a  jury; 
and  it  shall  be  the  duty  of  the  judge  to  decide  the  case  at  once, 
without  any  further  proceedings,  arguments,  continuance,  or 
delay;  each  party  having  the  right  to  appeal  to  the  Supreme 
Court  in  all  cases  where  an  appeal  is  allowed  by  law."  Under 
these  statutes,  Sauvinet  brought  action  against  Walker,  a  licensed 
keeper  of  a  coffee  house  in  New  Orleans,  for  refusing  refreshments 
on  the  ground  that  Sauvinet  w^as  a  man  of  color.  Walker  denied 
the  allegations  and  prayed  a  jury.  The  jury  disagreed.  Sauvinet 
moved  the  court  to  proceed  to  decide  the  case  as  provided  by  the 
act  of  1871,  Walker  objecting  that  the  act  was  unconstitutional. 
The  court,  after  giving  counsel  time  to  file  briefs  on  the  constitu- 
tional question,  gave  judgment  against  Walker  for  SI 000.  The 
judgment  w^as  affirmed  upon  appeal  to  the  Supreme  Court  of 
Louisiana. 

C.  W.  Hornor,  for  plaintiff  in  error;  and  J.  Q.  A.  Fellows,  contra. 

1  The  statement  has  been  rewritten.  —  Ed. 


WALKER  V.    SAUVINET. 


573 


Waite,  C.  J.,  .  .  .  delivered  the  opinion  of  the  court. 
So  far  as  we  can  discover  from  the  record,  the  only  federal 
question  decided  by  either  one  of  the  courts  below  was  that  which 
related  to  the  right  of  Walker  to  demand  a  trial  by  jury,  notwith- 
standing the  provisions  of  the  act  of  1871  to  the  contrary.     He 
insisted  that  he  had  a  constitutional  right  to  such  a  trial,  and  that 
the  statute  was  void  to  the  extent  that  it  deprived  him  of  this  right. 
All  questions  arising  under  the  Constitution  of  the  State  alone 
are  finally  settled  by  the  judgment  below.     We  can  consider  only 
such  as  grow  out  oi  the  Constitution  of  the  United  States.     By 
article  7  of  the  amenchnents,  it  is  provided,  that  "  in  suits  at  com- 
mon law,  where  the  value  in  controversy  shall  exceed  twenty  dol- 
lars, the  right  of  trial  by  jury  shall  be  preserved."     This,  as  has 
been  many  tunes  decided,  relates  only  to  trials  in  the  courts  of  the 
United  States.     Edwards  v.  Elliott,  21  Wall.  557.    The  States,  so 
far  as  this  amendment  is  concerned,  are  left  to  regulate  triais  in 
their  own  courts  in  their  own  way.      A  trial  by  jury  in  suits  at 
common  law  pending  in  the  State  courts  is  not,  therefore,  a  priv- 
ilege or  immunity  of  national  citizenship,  which  the  States  are 
forbidden  by  the  Fourteenth  Amendment  to  abridge.      A  State 
cannot  deprive  a  person  of  his  property  ^\-ithout  due  process  of 
law;  but  this  does  not  necessarily  imply  that  all  trials  in  the  State 
courts  affecting  the  property  of  persons  must  be  by  jur>\     This 
requirement  of  the  Constitution  is  met  if  the  trial  is  had  according 
to  the  settled  course  of  judicial  proceedings.     Murray's  Lessee  v. 
Hoboken  L.  &  I.  Co.,  18  How.  280.     Due  process  of  law  is  process 
due  according  to  the  law  of  the  land.     This  process  in  the  States  is 
regulated  by  the  law  of  the  State.      Our  power  over  that  law  is 
only  to  determine  whether  it  is  in  conflict  with  the  supreme  law  of 
the  land,  —  that  is  to  say,  with  the  Constitution  and  laws  of  the 
United  States  made  in  pursuance  thereof,  —  or  with  any  treaty 
made  under  the  authority  of  the  United  States.     Article  6  Const. 
Here  the  State  court  has  decided  that  the  proceeding  below  was  in 
accordance  \\ath  the  law  of  the  State;  and  we  do  not  find  that  to  be 
contrar>'  to  the  Constitution,  or  any  law  or  treaty  of  the  United 

States. 

The  other  questions  presented  by  the  assignment  of  errors  and 
argued  here  cannot  be  considered,  as  the  record  does  not  show  that 
they  were  brought  to  the  attention  of  either  of  the  courts  below. 

Judgment  affirmed. 

Field  and  Clifford,  J  J.,  dissented  from  the  opinion  and  judg- 
ments of  the  court. 


574  PROCEDURE. 

KENNARD   v.   LOUISIANA  ex  rel  MORGAN. 
Supreme  Court  of  the  United  States.     1876. 

[92  United  States,  480.]  ' 

Error  to  the  Supreme  Court  of  Louisiana. 

On  the  3d  of  December,  1872,  John  H.  Kennard  was,  during  a 
I  ecess  of  the  senate  of  Louisiana,  appointed  by  the  governor 
associate  justice  of  the  Supreme  Court  of  Louisiana,  in  place  of 
W.  W.  Howe,  resigned. 

On  the  4th  of  January,  1873,  the  acting  governor  commissioned 
P.  H.  Morgan  associate  justice  of  the  Supreme  Court,  in  place  of 
W.  W.  Howe,  resigned.  Kennard  claimed  to  hold  until  the 
expiration  of  the  next  regular  session  of  the  legislature. 

To  settle  the  disputed  title  to  the  office,  suit  was  brought.  The 
courts  of  Louisiana,  proceeding  under  an  act  of  the  legislature  of 
Jan.  15,  1873,  determined  in  favor  of  Morgan. 

The  case  was  then  brought  here  upon  the  ground  that  the  State 
of  Louisiana  acting  under  this  law,  through  her  judiciary,  had 
deprived  Kennard  of  his  office  without  due  process  of  law,  in  viola- 
tion of  that  provision  of  the  Fourteenth  Amendment  of  the  Con- 
stitution of  the  United  States  which  prohibits  any  State  from 
depriving  any  person  of  life,  liberty,  or  property,  "  without  due 
process  of  law."  The  provisions  of  the  law  are  set  forth  in  the 
opinion  of  the  court. 

T.  J.  Semmes  and  others,  for  plaintiff  in  error;  and  T.  J.  Durant, 
contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

The  sole  question  presented  for  our  consideration  in  this  case, 
as  stated  by  the  counsel  for  the  plaintiff  in  error,  is,  whether  the 
State  of  Louisiana,  acting  under  the  statute  of  Jan.  15,  1873, 
through  her  judiciary,  has  deprived  Kennard  of  his  office  without 
due  process  of  law.  It  is  substantially  admitted  by  counsel  in  the 
argument  that  such  is  not  the  case,  if  it  has  been  done  "  in  the  due 
course  of  legal  proceedings,  according  to  those  rules  and  forms 
which  have  been  established  for  the  protection  of  private  rights." 
We  accept  this  as  a  sufficient  definition  of  the  term  "  due  process 
of  law,"  for  the  purposes  of  the  present  case.  The  question  before 
us  is,  not  whether  the  courts  below,  having  jurisdiction  of  the  case 
and  the  parties,  have  followed  the  law,  but  whether  the  law,  if  fol- 
lowed, would  have  furnished  Kennard  the  protection  guaranteed 


KENNARD   V.    MORGAN.  575 

by  the  Constitution.  Irregularities  and  mere  errors  in  the  pro- 
ceedings can  only  be  corrected  in  the  State  courts.  Our  authority 
does  not  extend  beyond  an  examination  of  the  power  of  the  courts 
below  to  proceed  at  all. 

This  makes  it  necessary  for  us  to  examine  the  law  under  which 
the  proceedings  were  had,  and  determine  its  effect. 

It  was  entitled  ''  An  Act  to  regulate  proceedings  in  contestations 
between  persons  claiming  a  judicial  office."  Sect.  1  provided, 
that  "  in  any  case  in  which  a  person  may  have  been  appointed  to 
the  office  of  judge  of  any  court  in  this  State,  and  shall  have  been 
confirmed  by  the  senate  and  commissioned  thereto,  .  .  .  such 
commission  shall  be  prima  facie  proof  of  the  right  of  such  person 
to  immediately  hold  and  exercise  such  office." 

It  will  thus  be  seen  that  the  act  relates  specially  to  the  judges  of 
the  courts  of  the  State,  and  to  the  internal  regulations  of  a  State 
in  respect  to  its  own  officers. 

The  second  section  then  provides,  "  that  if  any  person,  being 
an  incumbent  of  such  office,  shall  refuse  to  vacate  the  same,  and 
turn  the  same  over  to  the  person  so  commissioned,  such  person  so 
commissioned  shall  have  the  right  to  proceed  by  rule  before  the 
court  of  competent  jurisdiction,  to  have  himself  declared  to  be 
entitled  to  such  office,  and  to  be  inducted  therein.  Such  rule  shall 
be  taken  contradictorily  with  such  incumbent,  and  shall  be  made 
returnable  within  twenty-four  hours,  and  shall  be  tried  imme- 
diately without  jury,  and  by  preference  over  all  matter  or  causes 
depending  in  such  court;  .  .  .  and  the  judgment  thereon  shall  be 
signed  the  same  day  of  rendition." 

There  is  here  no  provision  for  a  technical  "  citation,"  so  called; 
but  there  is,  in  effect,  provision  for  a  rule  upon  the  incumbent  to 
show  cause  why  he  refuses  to  surrender  his  office,  and  for  service 
of  this  rule  upon  him.  Ihe  incumbent  was,  therefore,  to  be 
formally  called  upon  by  a  court  of  competent  jurisdiction  to  give 
information  to  it,  in  an  adversarj^  proceeding  against  him,  of  the 
authority  by  which  he  assumed  to  perform  the  duties  of  one  of  the 
important  offices  of  the  State.  He  was  to  be  told  when  and  where* 
he  must  make  his  answer.  The  law  made  it  the  duty  of  the  court 
to  require  this  return  to  be  made  within  twenty-four  hours,  and  it 
placed  the  burden  of  proof  upon  him.  But  it  required  that  he 
should  be  called  upon  to  present  his  case  before  the  court  could 
proceed  to  judgment.  He  had  an  opportunity  to  be  heard  before 
he  could  be  condemned.     This  was  "  process  " ;  and,  when  served, 


576  PROCEDURE. 

it  was  sufficient  to  bring  the  incumbent  into  court,  and  to  place 
him  within  its  jurisdiction.  In  this  case,  it  is  evident  from  the 
record  that  the  rule  was  made,  and  that  it  was  in  some  form 
brought  to  the  attention  of  Kennard;  for  on  the  return  day  he 
appeared.  At  first,  instead  of  showing  cause  why  he  refused  to 
vacate  his  office,  he  objected  that  he  had  not  been  properly  cited 
to  appear;  but  the  court  adjudged  otherwise.  He  then  made 
known  his  title  to  the  office;  in  other  words,  he  showed  cause  why 
he  refused  to  vacate.  This  was,  in  effect,  that  he  had  been  com- 
missioned to  hold  the  office  till  the  end  of  the  next  session  of  the 
Senate,  and  that  time  had  not  arrived.  Upon  this  he  asked  a  trial 
by  jury.  This  the  court  refused,  and  properly,  because  the  law 
under  which  the  proceedings  were  had  provided  in  terms  that  there 
should  be  no  such  trial.  He  then  went  to  trial.  No  delays  were 
asked  except  such  as  were  granted.  Judgment  was  speedily 
rendered;  but  ample  time  and  opportunity  were  given  for  delibera- 
tion. Due  process  of  law  does  not  necessarily  imply  delay;  and  it 
is  certainly  no  improper  interference  ^\^th  the  rights  of  the  parties 
to  give  such  cases  as  this  precedence  over  the  other  business  in  the 
courts. 

The  next  section  provides  for  an  appeal.  True,  it  must  be  taken 
within  one  day  after  the  rendition  of  the  judgment,  and  is  made 
returnable  to  the  Supreme  Court  ^^^thin  two  days.  The  proceed- 
ing on  appeal  was  given  preference  over  all  other  business  in  the 
Appellate  Court,  and  the  judgment  upon  the  appeal  was  made 
final  after  the  expiration  of  one  day.  Kennard  availed  himself  of 
this  right.  He  took  his  appeal,  and  was  heard.  The  court  con- 
sidered the  case,  and  gave  its  judgment. 

From  this  it  appears  that  ample  provision  has  been  made  for 
the  trial  of  the  contestation  before  a  court  of  competent  juris- 
diction; for  bringing  the  party  against  whom  the  proceeding  is 
had  before  the  court,  and  notifying  him  of  the  case  he  is  required 
to  meet;  for  giving  him  an  opportunity  to  be  heard  in  his  defense; 
for  the  deliberation  and  judgment  of  the  court;  for  an  appeal  from 
this  judgment  to  the  highest  court  of  the  State,  and  for  hearing  and 
judgment  there.  A  mere  statement  of  the  facts  carries  with  it  a 
complete  answer  to  all  the  constitutional  objections  urged  against 
the  validity  of  the  act.  The  remedy  provided  was  certainly 
speedy;  but  it  could  only  be  enforced  by  means  of  orderly  proceed- 
ings in  a  court  of  competent  jurisdiction  in  accordance  with  rules 
and  forms  established  for  the  protection  of  the  rights  of  the  parties. 
In  this  particular  case,  the  party  complaining  not  only  had  the 


DAVIDSON   V.    NEW   ORLEANS.  577 

right  to  be  heard,  but  he  was  in  fact  heard,  both  in  the  court  in 
which  the  proceedings  were  originally  instituted,  and,  upon  his 
appeal,  in  the  highest  court  of  the  State. 

Judgment  affirmed.^ 


DAVIDSON  V.   NEW  ORLEANS. 
Supreme  Court  of  the  United  States.     1878. 

[96  United  States,  97.]  ^ 

Error  to  the  Supreme  Court  of  Louisiana. 

In  the  Seventh  District  Court  for  the  Parish  of  Orleans,  the  city 
of  New  Orleans  filed  a  petition  praying  confirmation  of  an  assess- 
ment on  real  estate  for  draining  swamp  lands.  The  widow  and 
executrix  of  Davidson  filed  exceptions;  and  the  court  set 
the  entire  assessment  aside.  On  appeal,  the  Supreme  Court  of 
Louisiana  reversed  the  decree,  and  decreed  that  the  assessment  be 
approved  and  that  it  should  operate  as  a  judgment  against  the 
property  and  also  against  the  owner. 

J.  D.  Hill  and  another  for  plaintiff  in  error;  and  P.  Phillips, 
contra. 

Miller,  J.,  delivered  the  opinion  of  the  court.  .  .  . 
Although  counsel  for  the  plaintiff  in  error  concede,  in  the  first 
sentence  of  their  brief,  that  the  only  federal  question  is  whether 
the  judgment  is  not  in  violation  of  that  provision  of  the  Constitu- 
tion which  declares  that  no  State  "  shall  deprive  any  person  of 
life,  liberty,  or  property  ^\'ithout  due  process  of  law,"  the  argument 
seems  to  suppose  that  this  court  can  correct  any  other  error  which 
may  be  found  in  the  record.  .  .  . 

The  prohibition  against  depriving  the  citizen  or  subject  of  his 
life,  liberty,  or  property  wdthout  due  process  of  law,  is  not  new  in 
the  constitutional  history  of  the  English  race.  It  is  not  new  in 
the  constitutional  history  of  this  country,  and  it  was  not  new  in  the 
Constitution  of  the  United  States  when  it  became  a  part  of  the 
fourteenth  amendment,  in  the  year  1866. 

The  equivalent  of  the  phrase  "  due  process  of  law,"  according 
to  Lord  Coke,  is  found  in  the  words  "  law  of  the  land,"  in  the 

1  See  Taylor  v.  Beckham,  178  U.  S.  548  (1900).  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


578  PROCEDURE. 

Great  Charter,  in  connection  \\ath  the  writ  of  habeas  corpus,  the 
trial  by  jury,  and  other  guarantees  of  the  rights  of  the  subject 
against  the  oppression  of  the  crown.  In  the  series  of  amendments 
to  the  Constitution  of  the  United  States,  proposed  and  adopted 
immediately  after  the  organization  of  the  government,  which  were 
dictated  by  the  jealousy  of  the  States  as  further  limitations  ijpon 
the  power  of  the  federal  government,  it  is  found  in  the  fifth,  in 
connection  with  other  guarantees  of  personal  rights  of  the  same 
character.  Among  these  are  protection  against  prosecutions  for 
crimes,  unless  sanctioned  by  a  grand  jury;  against  being  twice 
tried  for  the  same  offense;  against  the  accused  being  compelled, 
in  a  criminal  case,  to  testify  against  himself;  and  against  taking 
private  property  for  public  use  without  just  compensation. 

Most  of  these  provisions,  including  the  one  under  consideration, 
either  in  terms  or  in  substance,  have  been  embodied  in  the  con- 
stitutions of  the  several  States,  and  in  one  shape  or  another  have 
been  the  subject  of  judicial  construction. 

It  must  be  confessed,  however,  that  the  constitutional  meaning 
or  value  of  the  phrase  "  due  process  of  law,"  remains  to-day 
without  that  satisfactory  precision  of  definition  which  judicial 
decisions  have  given  to  nearly  all  the  other  guarantees  of  personal 
rights  found  in  the  constitutions  of  the  several  States  and  of  the 
United  States. 

It  is  easy  to  see  that  when  the  great  barons  of  England  wrung 
from  King  John,  at  the  point  of  the  sword,  the  concession  that 
neither  their  lives  nor  their  property  should  be  disposed  of  by  the 
crown,  except  as  provided  by  the  law  of  the  land,  they  meant  by 
"  law  of  the  land  "  the  ancient  and  customary  laws  of  the  English 
people,  or  laws  enacted  by  the  Parliament  of  which  these  barons 
were  a  controlling  element.  It  was  not  in  their  minds,  therefore, 
to  protect  themselves  against  the  enactment  of  laws  by  the  Parlia- 
ment of  England.  But  when,  in  the  year  of  grace  1866,  there  is 
placed  in  the  Constitution  of  the  United  States  a  declaration  that 
"  no  State  shall  deprive  any  person  of  life,  liberty,  or  property 
^vithout  due  process  of  law,"  can  a  State  make  anything  due  pro- 
cess of  law  which,  by  its  owti  legislation,  it  chooses  to  declare  such  ? 
To  affirm  this  is  to  hold  that  the  prohibition  to  the  States  is  of  no 
avail,  or  has  no  application  where  the  invasion  of  private  rights  is 
effected  under  the  forms  of  State  legislation.  It  seems  to  us  that  a 
statute  which  declares  in  terms,  and  without  more,  that  the  full  and 
exclusive  title  of  a  described  piece  of  land,  which  is  now  in  A., 
shall  be  and  is  hereby  vested  in  B.,  would,  if  effectual,  deprive  A. 


DAVIDSON   V.    NEW    ORLEANS.  579 

of  his  property  without  due  process  of  law,  within  the  meaning  of 
the  constitutional  provision. 

A  most  exhaustive  judicial  inquiry  into  the  meaning  of  the  words 
"  due  process  of  law,"  as  found  in  the  fifth  amendment,  resulted 
in  the  unanunous  decision  of  this  court,  that  they  do  not  necessarily 
imply  a  regular  proceeding  in  a  court  of  justice,  or  after  the  manner 
of  such  courts.  Murray's  Lessee  et  al.  v.  Hoboken  Land  and 
Improvement  Co.,  18  How.  272.  .  .  . 

It  is  not  a  little  remarkable,  that  while  this  provision  has  been 
in  the  Constitution  of  the  United  States,  as  a  restraint  upon  the 
authority  of  the  federal  government,  for  nearly  a  century,  and 
while,  during  all  that  time,  the  manner  in  which  the  powers  of 
that  government  have  been  exercised  has  been  watched  with  jeal- 
ousy, and  subjected  to  the  most  rigid  criticism  in  all  its  branches, 
this  special  limitation  upon  its  powers  has  rarely  been  invoked  in 
the  judicial  forum  or  the  more  enlarged  theatre  of  public  discus- 
sion. But  while  it  has  been  a  part  of  the  Constitution,  as  a  re- 
straint upon  the  power  of  the  States,  only  a  very  few  years,  the 
docket  of  this  court  is  crowded  with  cases  in  which  we  are  asked  to 
hold  that  State  courts  and  State  legislatures  have  deprived  their 
own  citizens  of  life,  Uberty,  or  property  without  due  process  of 
law.  There  is  here  abundant  evidence  that  there  exists  some 
strange  misconception  of  the  scope  of  this  provision  as  found  in  the 
fourteenth  amenchnent.  In  fact,  it  would  seem,  from  the  character 
of  many  of  the  cases  before  us,  and  the  arguments  made  in  them, 
that  the  clause  under  consideration  is  looked  upon  as  a  means  of 
bringing  to  the  test  of  the  decision  of  this  court  the  abstract 
opinions  of  every  unsuccessful  litigant  in  a  State  court  of  the  justice 
of  the  decision  against  him,  and  of  the  merits  of  the  legislation  on 
which  such  a  decision  may  be  founded.  If,  therefore,  it  were 
possible  to  define  what  it  is  for  a  State  to  deprive  a  person  of  life, 
liberty,  or  property  without  due  process  of  law,  in  terms  which 
would  cover  every  exercise  of  power  thus  forbidden  to  the  State, 
and  exclude  those  which  are  not,  no  more  useful  construction  could 
be  furnished  by  this  or  any  other  court  to  any  part  of  the  fundamen- 
tal law. 

But,  apart  from  the  hnminent  risk  of  a  failure  to  give  any 
definition  which  would  be  at  once  perspicuous,  comprehensive, 
and  satisfactory,  there  is  wisdom,  we  think,  in  the  ascertaining  of 
the  intent  and  application  of  such  an  important  phrase  in  the 
federal  Constitution,  by  the  gradual  process  of  judicial  inclusion 
and  exclusion,  as  the  cases  presented  for  decision  shall  require, 


580  PROCEDURE. 

with  the  reasoning  on  which  such  decisions  may  be  founded.  This 
court  is,  after  an  experience  of  nearly  a  century,  still  engaged  in 
defining  the  obligation  of  contracts,  the  regulation  of  commerce, 
and  other  powers  conferred  on  the  federal  goverrmient,  or  limita- 
tions imposed  upon  the  States. 

As  contributing,  to  some  extent,  to  this  mode  of  determining 
what  class  of  cases  do  not  fall  within  its  provision,  we  lay  down 
the  following  proposition,  as  applical)le  to  the  case  before  us:  — 

That  whenever  by  the  laws  of  a  State,  or  by  State  authority,  a 
tax,  assessment,  servitude,  or  other  burden  is  imposed  upon  prop- 
erty for  the  public  use,  whether  it  be  for  the  whole  State  or  of 
some  more  limited  portion  of  the  community,  and  those  laws 
provide  for  a  mode  of  confirming  or  contesting  the  charge  thus 
imposed,  in  the  ordinary  courts  of  justice,  with  such  notice  to  the 
person,  or  such  proceeding  in  regard  to  the  property  as  is  appro- 
priate to  the  nature  of  the  case,  the  judgment  in  such  proceedings 
cannot  be  said  to  deprive  the  o^vner  of  his  property  ^\•ithout  due 
process  of  law,  however  obnoxious  it  may  be  to  other  objections. 

It  may  violate  some  provision  of  the  State  constitution  against 
unequal  taxation;  but  the  federal  Constitution  imposes  no  re- 
straint on  the  States  in  that  regard.  If  private  property  be  taken 
for  public  uses  without  just  compensation,  it  must  be  remembered 
that,  when  the  fourteenth  amendment  was  adopted,  the  provision 
on  that  subject,  in  immediate  juxtaposition  in  the  fifth  amend- 
ment with  the  one  we  are  construing,  was  left  out,  and  this  was 
taken.  It  may  possibly  violate  some  of  those  principles  of  general 
constitutional  law,  of  which  we  could  take  jurisdiction  if  we  were 
sitting  in  review  of  a  Circuit  Court  of  the  United  States,  as  we  were 
in  Loan  Association  v.  Topeka  (20  Wall.  655).  But  however  this 
may  be,  or  under  whatever  other  clause  of  the  federal  Constitution 
we  may  review  the  case,  it  is  not  possible  to  hold  that  a  party  has, 
without  due  process  of  law,  been  deprived  of  his  property,  when,  as 
regards  the  issues  affecting  it,  he  has,  by  the  laws  of  the  State,  a 
fair  trial  in  a  court  of  justice,  according  to  the  modes  of  proceeding 
applicable  to  such  a  case.  This  was  clearly  stated  by  this  court, 
speaking  by  the  Chief  Justice,  in  Kennard  v.  Morgan  (92  U.  S. 
480),  and,  in  substance,  repeated  at  the  present  term,  in  McMillan 
V.  Anderson  (95  id.  37). 

This  proposition  covers  the  present  case.  Before  the  assess- 
ment could  be  collected,  or  become  effectual,  the  statute  required 
that  the  tableau  of  assessments  should  be  filed  in  the  proper  Dis- 
trict Court  of  the  State;    that  personal  service  of  notice,  vnih 


DAVIDSON   V.   NEW    ORLEANS.  581 

reasonable  time  to  object,  should  be  served  on  all  owners  who  were 
known  and  within  reach  of  process,  and  due  advertisement  made 
as  to  those  who  were  unknown,  or  could  not  be  found.  This  was 
complied  with;  and  the  party  complaining  here  appeared,  and  had 
a  full  and  fair  hearing  in  the  court  of  the  first  instance,  and  after- 
wards in  the  Supreme  Court.  If  this  be  not  due  process  of  law, 
then  the  words  can  have  no  definite  meaning  as  used  in  the  Con- 
stitution. 

One  or  two  errors  assigned,  and  not  mentioned  in  the  earlier 
part  of  this  opinion,  deserve  a  word  or  two. 

It  is  said  that  the  plaintiff's  property  had  previously  been 
assessed  for  the  same  purpose,  and  the  assessment  paid.  If  this 
be  meant  to  deny  the  right  of  the  State  to  tax  or  assess  property 
twice  for  the  same  purpose,  we  know  of  no  provision  in  the  federal 
Constitution  which  forbids  this,  or  which  forbids  unequal  taxation 
by  the  States.  If  the  act  under  which  the  former  assessment  was 
made  is  relied  on  as  a  contract  against  further  assessments  for  the 
same  purpose,  we  concur  with  the  Supreme  Court  of  Louisiana  in 
being  unable  to  discover  such  a  contract. 

It  is  also  said  that  part  of  the  property  of  plaintiff  which  was 
assessed  is  not  benefited  by  the  improvement.  This  is  a  matter  of 
detail  with  which  this  court  cannot  interfere,  if  it  were  clearly  so; 
but  it  is  hard  to  fix  a  limit  within  these  two  parishes  where  property 
would  not  be  benefited  by  the  removal  of  the  swamps  and  marshes 
which  are  within  their  bounds. 

And  lastly,  and  most  strongly,  it  is  urged  that  the  court  rendered 
a  personal  judgment  against  the  owner  for  the  amount  of  the  tax, 
while  it  also  made  it  a  charge  upon  the  land.  It  is  urged  with 
force,  —  and  some  highly  respectable  authorities  are  cited  to  sup- 
port the  proposition,  —  that  while  for  such  improvements  as  this  a 
part,  or  even  the  whole,  of  a  man's  property  connected  with  the 
improvement  may  be  taken,  no  personal  liability  can  be  imposed 
on  him  in  regard  to  it.  If  this  were  a  proposition  coming  before  us 
sitting  in  a  State  court,  or,  perhaps,  in  a  Circuit  Court  of  the  United 
States,  we  might  be  called  upon  to  decide  it ;  but  we  are  unable  to 
see  that  any  of  the  provisions  of  the  federal  Constitution  author- 
izes us  to  reverse  the  judgment  of  a  State  court  on  that  question. 
It  is  not  one  which  is  involved  in  the  phrase  "  due  process  of  law," 
and  none  other  is  called  to  our  attention  in  the  present  case. 

As  there  is  no  error  in  the  judgment  of  the  Supreme  Court  of 
Louisiana,  of  which  this  court  has  cognizance,  it  is 

Affirmed. 


582  PROCEDURE. 

Bradley,  J.  In  the  conclusion  and  general  tenor  of  the  opinion 
just  read,  I  concur.  But  I  think  it  narrows  the  scope  of  inquiry  as 
to  what  is  due  process  of  law  more  than  it  should  do. 

It  seems  to  me  that  private  property  may  be  taken  by  a  State 
without  due  process  of  law  in  other  ways  than  by  mere  direct 
enactment,  or  the  want  of  a  judicial  proceeding.  If  a  State,  by  its 
laws,  should  authorize  private  property  to  be  taken  for  public  use 
without  compensation  (except  to  prevent  its  falling  into  the  hands 
of  an  enem.y,  or  to  prevent  the  spread  of  a  conflagration,  or,  in 
virtue  of  some  other  imminent  necessity,  where  the  property  itself 
is  the  cause  of  the  public  detriment),  I  think  it  would  be  depriving 
a  man  of  his  property  without  due  process  of  law.  The  exceptions 
noted  imply  that  the  nature  and  cause  of  the  taking  are  proper  to 
be  considered.  .  .  .  We  are  entitled,  under  the  fourteenth  amend- 
ment, not  only  to  see  that  there  is  some  process  of  law,  but  "  due 
process  of  law,"  provided  by  the  State  law  when  a  citizen  is  de- 
prived of  his  property;  and  that,  in  judging  what  is  "  due  process 
of  law,"  respect  must  be  had  to  the  cause  and  object  of  the  taking, 
whether  under  the  taxing  power,  the  power  of  eminent  domain, 
or  the  power  of  assessment  for  local  improvements,  or  none  of 
these:  and  if  found  to  be  suitable  or  admissible  in  the  special  case, 
it  will  be  adjudged  to  be  "  due  process  of  law  ";  but  if  found  to  be 
arbitrary,  oppressive,  and  unjust,  it  may  be  declared  to  be  not 
"  due  process  of  law."  Such  an  examination  may  be  made  with- 
out interfering  with  that  large  discretion  which  every  legislative 
power  has  of  making  wide  modifications  in  the  forms  of  procedure 
in  each  case,  according  as  the  laws,  habits,  customs,  and  prefer- 
ences of  the  people  of  the  particular  State  may  require. 


MISSOURI   V.   LEWIS. 
Supreme  Court  of  the  United  States.     1880. 
[101  United  Stales,  22.]  i 
Error  to  the  Supreme  Court  of  Missouri. 

The  State  of  Missouri,  on  the  relation  of  Bowman,  petitioned  the 
Supreme  Court  of  Missouri  for  a  writ  of  mandamus  to  compel  Lewis 
and  others,  judges  of  the  St.  Louis  Court  of  Appeals,  to  grant  an 
application  for  an  appeal  to  the  said  Supreme  Court  from  a  judg- 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MISSOURI    V.    LEWIS.  583 

ment  of  the  said  Court  of  Appeals  affirming  a  judgment  whereby 
the  Circuit  Court  of  St.  Louis  County  removed  Bowman  from  the 
practice  of  the  law  by  reason  of  ha\'ing  been  found  guilty  by  a  jiwy 
upon  charges  preferred;  and  the  writ  was  refused  upon  grounds 
explained  in  the  opinion  of  the  Supreme  Court  of  the  United  States. 

J.  S.  Black,  G.  F.  Edmunds,  and  D.  Wagner,  for  plaintiff  in  error; 
and  Henry  Hitchcock  and  C.  H.  Krum,  contra. 

Bradley,  J.,  delivered  the  opmion  of  the  court. 

B}'  the  constitution  and  laws  of  Missouri  an  appeal  Ues  to  the 
Supreme  Court  of  that  State  from  any  final  judgment  or  decree  of 
any  circuit  court,  except  those  in  the  counties  of  Saint  Charles, 
Lincoln,  \Yarren,  and  Saint  Louis,  and  the  city  of  Saint  Louis;  for 
which  counties  and  city  the  constitution  of  1875  establishes  a 
separate  court  of  appeal,  called  the  Saint  Louis  Court  of  Appeals, 
and  gives  to  said  court  exclusive  jurisdiction  of  all  appeals  from, 
and  writs  of  error  to,  the  circuit  courts  of  those  counties  and  of  said 
city;  and  from  this  court  (the  Saint  Louis  Court  of  Appeals)  an 
appeal  hes  to  the  Supreme  Court  only  in  cases  where  the  amount  in 
dispute,  exclusive  of  costs,  exceeds  the  sum  of  S2,500,  and  in  cases 
invohdng  the  construction  of  the  Constitution  of  the  United  States 
or  of  ^Missouri,  and  in  some  other  cases  of  special  character  which 
are  enumerated.  No  appeal  is  given  to  the  Supreme  Court  in  a 
case  Hke  the  present  arising  in  the  counties  referred  to,  or  in  the 
city  of  Saint  Louis;  but  a  smifiar  case  arising  in  the  circuit  courts 
of  any  other  county  would  be  appealable  directly  to  the  Supreme 

Court. 

The  plaintiff  m  error  contends  that  this  feature  of  the  judicial 
system  of  Missouri  is  in  conflict  with  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States,  because  it  denies  to 
suitors  in  the  courts  of  Saint  Louis  and  the  counties  named  the 
equal  protection  of  the  laws,  in  that  it  denies  to  them  the  right  of 
appeal  to  the  Supreme  Court  of  Missouri  in  cases  where  it  gives 
that  right  to  suitors  in  the  courts  of  the  other  counties  of  the  State. 

If  this  position  is  correct,  the  Fourteenth  Amendment  has  a 
much  more  far-reaching  effect  than  has  been  supposed.  It  would 
render  invaUd  all  hmitations  of  jurisdiction  based  on  the  amount  or 
character  of  the  demand.  A  party  having  a  claim  for  only  five 
dollars  could  with  equal  propriety  complain  that  he  is  deprived  of 
a  right  enjoyed  by  other  citizens,  because  he  cannot  prosecute  it  in 
the  superior  courts;  and  another  might  equally  complain  that  he 
cannot  bring  a  suit  for  real  estate  in  a  justice's  court,  where  the 
expense  is  small  and  the  proceedings  are  expeditious.     There  is  no 


584  PROCEDURE. 

difference  in  principle  between  such  discriminations  as  these  in  the 
jurisdictions  of  courts  and  that  which  the  plaintiff  in  error  com- 
plains of  in  the  present  case. 

If,  however,  we  take  into  view  the  general  objects  and  purposes 
of  the  Fourteenth  Amendment,  we  shall  find  no  reasonable  ground 
for  giving  it  any  such  apphcation.  These  are  to  extend  United 
States  citizensliip  to  all  natives  and  naturalized  persons,  and  to 
prohibit  the  States  from  abridging  their  privileges  or  immunities, 
and  from  depriving  any  person  of  life,  liberty,  or  property  without 
due  process  of  law,'  and  from  denying  to  any  person  within  their 
jurisdiction  the  equal  protection  of  the  laws.  It  contemplates 
persons  and  classes  of  persons.  It  has  not  respect  to  local  and 
municipal  regulations  that  do  not  injuriously  affect  or  discriminate 
between  persons  or  classes  of  persons  within  the  places  or  munici- 
palities for  which  such  regulations  are  made.  The  amendment 
could  never  have  been  intended  to  prevent  a  State  from  arranging 
and  parcelUng  out  the  jurisdiction  of  its  several  courts  at  its  dis- 
cretion. No  such  restriction  as  this  could  have  been  in  view,  or 
could  have  been  included,  in  the  prohiV)ition  that  "  no  State  shall 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."  It  is  the  right  of  every  State  to  establish  such  courts  as 
it  sees  fit,  and  to  prescribe  their  several  jurisdictions  as  to  terri- 
torial extent,  subject-matter,  and  amount,  and  the  finaUty  and 
effect  of  their  decisions,  provided  it  does  not  encroach  upon  the 
proper  jurisdiction  of  the  United  States,  and  does  not  abridge  the 
privileges  and  immunities  of  citizens  of  the  United  States,  and 
does  not  deprive  any  person  of  his  rights  without  due  process  of 
law,  nor  deny  to  any  person  the  equal  protection  of  the  laws, 
including  the  equal  right  to  resort  to  the  appropriate  courts  for 
redress.  The  last  restriction,  as  to  the  equal  protection  of  the  laws, 
is  not  violated  by  any  diversity  in  the  jurisdiction  of  the  several 
courts  as  to  subject-matter,  amount,  or  finahty  of  decision,  if  all 
persons  within  the  territorial  limits  of  their  respective  jm-isdictions 
have  an  equal  right,  in  like  cases  and  under  hke  circmnstances,  to 
resort  to  them  for  redress.  Each  State  has  the  right  to  make 
pohtical  subdivisions  of  its  territory  for  municipal  purposes,  and 
to  regulate  their  local  government.  As  respects  the  administra- 
tion of  justice,  it  may  establish  one  system  of  courts  for  cities  and 
another  for  rural  districts,  one  system  for  one  portion  of  its  terri- 
tory and  another  system  for  another  portion.  Convenience,  if 
not  necessity,  often  requires  this  to  be  done,  and  it  would  seriously 
interfere  with  the  power  of  a  State  to  regulate  its  internal  affairs  to 


MISSOURI    t'.    LEWIS.  ^85 


deny  to  it  this  right.  We  think  it  is  not  denied  or  taken  away  by 
anything  in  the  Constitution  of  the  United  States,  including  the 
amendments  thereto. 

We  might  go  still  further,  and  say,  with  undoubted  truth,  that 
there  is  nothing  m  the  Constitution  to  prevent  any  State  from 
adopting  any  system  of  laws  or  judicature  it  sees  fit  for  all  or  any 
part  of  its  territory.  If  the  State  of  New  York,  for  example, 
should  see  fit  to  adopt  the  civil  law  and  its  method  of  procedure  for 
New  York  City  and  the  surrounding  counties,  and  the  common 
law  and  its  method  of  procedure  for  the  rest  of  the  State,  there  is 
nothing  m  the  Constitution  of  the  United  States  to  prevent  its 
doing  so.  This  would  not,  of  itself,  within  the  meaning  of  the 
Fourteenth  Amendment,  be  a  denial  to  any  person  of  the  equal 
protection  of  the  laws.  If  every  person  residing  or  being  in  either 
portion  of  the  State  should  be  accorded  the  equal  protection  of  the 
laws  prevailing  there,  he  could  not  justly  complain  of  a  violation  of 
the  clause  referred  to.  For,  as  before  said,  it  has  respect  to  persons 
and  classes  of  persons.  It  means  that  no  person  or  class  of  persons 
shall  be  denied  the  same  protection  of  the  laws  which  is  enjoyed  by 
other  persons  or  other  classes  in  the  same  place  and  under  Uke 
circumstances. 

The  Fourteenth  Amendment  does  not  profess  to  secure  to  ail 
persons  in  the  United  States  the  benefit  of  the  same  laws  and  the 
same  remedies.     Great  diversities  in  these  respects  may  exist  in 
two  States  separated  only  by  an  imaginary  Une.     On  one  side  of 
this  line  there  mav  be  a  right  of  trial  by  jury,  and  on  the  other  side 
no  such  right.      Each  State  prescribes  its  own  modes  of  judicial 
proceeding.      If  diversities  of  laws  and  judicial  proceedings  may 
-xist  in  the  several  States  without  ^-iolating  the  equaUty  clause  in 
the  Fourteenth  Amendment,  there  is  no  soHd  reason  why  there 
may  not  be  such  diversities  in  different  parts  of  the  same  State. 
A  uniformity  which  is  not  essential  as  regards  different  States 
cannot  be  essential  as  regards  different  parts  of  a  State,  pro^aded 
that  in  each  and  all  there  is  no  infraction  of  the  constitutional 
pro\4sion      Diversities  which  are  allowable  in  different  States  are 
allowable  in  different  parts  of  the  same  State.      Where  part  of  a 
State  is  thickly  settled,  and  another  part  has  but  few  mhabitants, 
it  may  be  desirable  to  have  different  systems  of  judicature  for  the 
two  portions,  -trial  by  jury  in  one,  for  example,  and  not  m  the 
other      Large  cities  mav  require  a  multipUcation  of  courts  and  a 
pecuhar  arrangement  of  jurisdictions.     It  would  be  an  unfortunate 


586  PROCEDURE. 

restriction  of  the  powers  of  the  State  government  if  it  could  not,  in 
its  discretion,  provide  for  these  various  exigencies. 

If  a  Mexican  State  should  be  acquired  by  treaty  and  added  to  an 
adjoining  State,  or  part  of  a  State,  in  the  United  States,  and  the 
two  should  be  erected  into  a  new  State,  it  cannot  be  doubted  that 
such  new  State  might  allow  the  Mexican  laws  and  judicature  to 
continue  unchanged  in  the  one  portion,  and  the  common  law  and  its 
corresponding  judicature  in  the  other  portion.  Such  an  arrange- 
ment would  not  be  prohibited  by  any  fair  construction  of  the 
Fourteenth  Amendment.  It  would  not  be  based  on  any  respect 
of  persons  or  classes,  but  on  municipal  considerations  alone,  and  a 
regard  to  the  welfare  of  all  classes  within  the  particular  territorj^ 
or  jurisdiction. 

It  is  not  impossible  that  a  distinct  territorial  establishment  and 
jurisdiction  might  be  intended  as,  or  might  have  the  effect  of,  a 
discrimination  against  a  particular  race  or  class,  where  such  race 
or  class  should  happen  to  be  the  principal  occupants  of  the  dis- 
favored district.  Should  such  a  case  ever  arise,  it  will  be  time 
enough  then  to  consider  it.  No  such  case  is  pretended  to  exist  in 
thfr  present  instance. 

It  is  apparent  from  the  view  we  have  taken  of  the  import  and 
effect  of  the  equality  clause  of  the  Fourteenth  Amendment,  which 
has  been  reUed  upon  by  the  plaintiff  in  error  in  this  case,  that  it 
cannot  be  invoked  to  invaUdate  that  portion  of  the  judicial  system 
established  by  the  constitution  and  laws  of  Missouri,  which  is  the 
subject  of  complaint.  This  follows  without  any  special  examina- 
tion of  the  particular  adjustment  of  jurisdictions  between  the 
courts  of  Missouri  as  affected  by  its  constitution  and  laws.  Such 
a  special  examination,  however,  if  it  were  our  province  to  make  it, 
would  readily  show  that  there  is  no  foundation  for  the  complaint 
which  has  been  made.  Bowman  has  had  the  benefit  of  the  right  of 
appeal  to  the  full  extent  enjoyed  by  any  member  of  the  profession  in 
other  parts  of  the  State.  In  the  outside  counties  they  have  but 
one  appeal,  —  from  the  Circuit  Court  to  the  Supreme  Court.  In 
Saint  Louis,  he  had  the  benefit  of  an  appeal  from  the  Circuit  Court 
of  Saint  Louis  County  to  the  Saint  Louis  Court  of  Appeals.  This 
is  as  much  as  he  could  ask,  even  if  his  rights  of  appeal  were  to  be 
nicely  measured  by  the  right  enjoyed  in  the  outside  counties.  The 
constitution  of  the  State  has  provided  two  courts  of  appeal  for 
different  portions  of  its  territory,  —  the  Saint  Louis  Court  of  Ap- 
peals for  one  portion,  and  the  Supreme  Court  for  another  portion. 
It  is  not  for  us,  nor  for  any  other  tribunal,  to  say  that  these  courts 


HURTADO    V.    CALIFORNIA.  587 

do  not  afford  equal  securityfor  the  due  administration  of  the  laws 
of  Missouri  within  their  respective  jurisdictions.  Where  the 
decisions  of  the  Saint  Louis  Court  of  Appeals  are  final,  they  are 
clothed  with  all  the  majesty  of  the  law  which  surrounds  those  of 
the  Supreme  Court.  If  in  certain  cases  a  still  further  appeal  is 
allowed  from  the  one  court  to  the  other,  this  fact  does  not  derogate 
in  the  least  from  the  credit  and  authority  of  those  decisions  of  the 
former  which  by  the  constitution  and  laws  of  the  State  are  final 
and  conclusive. 

But  this  special  consideration  is  an  accidental  phase  of  the 
particular  case.  The  true  ground  on  which  the  case  rests  is  the 
undoubted  power  of  the  State  to  regulate  the  jurisdiction  of  its 
own  tribunals  for  the  different  portions  of  its  territory  in  such 
maimer  as  it  sees  fit,  subject  only  to  the  limitations  before  referred 
to;  and  our  conclusion  is  that  this  power  is  unaffected  by  the 
constitutional  provision  which  has  been  rehed  on  to  invalidate  its 
exercise  in  this  case.  Judgment  affirmed. 


HURTADO  V.  CALIFORNIA. 

Supreme  Court  of  the  United  States.     1884. 

[110  United  States,  516.]  > 

Error  to  the  Supreme  Court  of  California. 

The  Constitution  of  California,  1879,  art.  I,  sect.  8,  provided 
that  "  Offenses  heretofore  required  to  be  prosecuted  by  indict- 
ment shall  be  prosecuted  by  information,  after  examination  and 
commitment  by  a  magistrate,  or  by  indictment,  with  or  without 
such  examination  and  commitment,  as  may  be  prescribed  by  law." 
In  pursuance  of  that  provision  and  of  the  Penal  Code,  sects.  809 
and  872,  the  district  attorney  of  Sacramento  County  filed  an 
information  in  the  Superior  Court  of  the  county  charging  Hurtado 
with  murder.  On  arraignment  the  accused  pleaded  not  guilty; 
and  on  trial  the  ]\ir\  rendered  a  verdict  of  guilty  of  murder  in  the 
first  degree.  The  judgment  was  death.  When  Hurtado  was 
asked  whether  he  had  any  legal  reason  why  the  judgment  should 
not  be  executed,  and  why  an  order  should  not  be  made  fixing  the 
day  for  the  execution  thereof,  he  objected,  through  his  counsel, 

1  The  statement  has  not  been  reprinted.  —  Ed. 


588  PROCEDURE. 

upon  the  ground  that  the  proceedings  and  the  laws  and  the  State 
constitution  were  in  conflict  with  the  Fifth  and  Fourteenth  Amend- 
ments to  the  Constitution  of  the  United  States.  The  court 
overruled  the  objections,  and  on  appeal  the  Supreme  Court  of 
California  sustained  the  judgment. 

A.  L.  Hart,  for  plaintiff  in  error;  and  J.  T.  Gary,  contra. 

Matthews,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indict- 
ment or  presentment  by  a  grand  jury,  as  known  to  the  common 
law  of  England,  is  essential  to  that  "  due  process  of  law,"  when 
applied  to  prosecutions  for  felonies,  which  is  secured  and  guaran- 
teed by  this  provision  of  the  Constitution  of  the  United  States,  and 
which  accordingly  it  is  forbidden  to  the  States  respectively  to 
dispense  with  in  the  administration  of  criminal  law.  .  .  . 

It  is  maintained  on  behalf  of  the  plaintiff  in  error  that  the  phrase 
"  due  process  of  law  "  is  equivalent  to  "  law  of  the  land,"  as  found 
in  the  29th  chapter  of  Magna  Charta;  that  by  immemorial  usage 
it  has  acquired  a  fixed,  definite,  and  technical  meaning;  that  it 
refers  to  and  includes,  not  only  the  general  principles  of  public 
liberty  and  private  right,  which  lie  at  the  foundation  of  all  free 
government,  but  the  very  institutions  which,  venerable  by  time 
and  custom,  have  been  tried  by  experience  and  found  fit  and 
necessary  for  the  preservation  of  those  principles,  and  which, 
having  been  the  birthright  and  inheritance  of  every  English  subject, 
crossed  the  Atlantic  with  the  colonists  and  were  transplanted  and 
established  in  the  fundamental  laws  of  the  State;  that,  having 
been  originally  introduced  into  the  Constitution  of  the  United 
States  as  a  limitation  upon  the  powers  of  the  government,  brought 
into  being  by  that  instrument,  it  has  now  been  added  as  an  addi- 
tional security  to  the  individual  against  oppression  by  the  States 
themselves;  that  one  of  these  institutions  is  that  of  the  grand  jury, 
an  indictment  or  presentment  by  which  against  the  accused  in 
cases  of  alleged  felonies  is  an  essential  part  of  due  process  of  law,  in 
order  that  he  may  not  be  harassed  or  destroyed  by  prosecutions 
founded  only  upon  private  malice  or  popular  fury. 

This  view  is  certainly  supported  by  the  authority  of  the  great 
name  of  Chief  Justice  Shaw  and  of  the  court  in  which  he  presided, 
which,  in  Jones  v.  Robbins,  8  Gray,  329,  decided  that  the  12th 
article  of  the  Bill  of  Rights  of  Massachusetts,  a  transcript  of 
Magna  Charta  in  this  respect,  made  an  indictment  or  present- 
ment of  a  grand  jury  essential  to  the  validity  of  a  conviction  in 
cases  of  prosecutions  for  felonies.  .  .  . 


HURTADO   V.    CALIFORNIA. 


In  beginning  his  commentary  on  this  chapter  of  Magna  Charta, 
2  Inst.  46,  Coke  says: 

"  This  chanter  containeth  nine  several  branches:  x,    +  :, 

''  1    That  no  man  be  taken  or  imprisoned  but  per  legem  terrcB,  tliat  is, 
by  the  common  law,  statute  law,  or  custom  of  England;  for  the  .-ox-ds  ;^ 
llgen^tZ,  being  t;>wards  the  end  of  this  chapter,  doe  referre  to  all  the 

Z     \o  man  siw  ,  ^^^  condition,)  or  by 

rilw  J^V^Xti^Tl^'^on^  '0^  aU,)  by  the  due  course  and 
process  of  law."  .  •  • 

Recurring  to  the  first  clause  of  the  chapter,  he  continues; 
<■  ..  No  n.a„  shall  he  taken  ^haUs)  restrai^^^^  of  liberty  by-  petMon  or 
suggestion  to  the  W-,^:,^   nTenwhe"es™h  deeds  be  done.     This 
Etr     'dtrothTr™  tins  act  l,ave  been  notably  explained  by 
divers  acts  of  Parliament,  &c.,  quoted  m  the  margent. 

The  reference  is  to  various  acts  during  the  reign  of  Edward  III. 
And  reaching  again  the  word  "  nisi  per  legem  terras,    he  continues: 

ItXTa'nd  t^tud^d  wlth»t  d;,:Troces,s  of  the  law,  for  there  it  is 

1  .1   n^htt  brcontained  in  the  Great  Charter,  that  no  man  be  taken, 
said,  though  It  be  eontamea  m  ^^  ^^^  l^^_  ^^^^  ^^^  1^^ 

imprisoned,  or  put  out  ot  ^  ^J  7J  ^       [^^^^  ^l^eds  be  done  in  due 

KTo  "lleS  tllLt'lli  cCl?r  is  but  declaratory  of  the  old  law  of 
England." 

It  is  quite  apparent  from  these  extracts  that  the  interpretation 
usually  put  upon  Lord  Coke's  statement  is  too  large,  because  if  an 
"ndictLL  or  presentment  by  a  grand  jury  is  essential  to  due 
™oces"of  law  in  all  ca^es  of  imprisonment  for  crime,  it  applies  not 
X  o  felonies  but  to  misdemeanors  and  petty  offenses,  and  he 
conclusion  would  be  inevitable  tliat  informations  as  a  substitute 
for  indictments  would  be  illegal  in  all  cases.  ■  •  • 

I U   urged  upon  us,  however,  in  argument,  that  the  ch.m  made 
in  behalf  of  the  plaintiff  in  error  is  supported  by  the  decision  o 
this  court  in  Murray's  Lessee  ..  Hoboken  Land  and  Improvement 
Co.,  18  How.  272.  .  .  . 


590  PROCEDURE. 

The  point  in  the  case  cited  arose  in  reference  to  a  sunimarj'  pro- 
ceeding, questioned  on  that  account,  as  not  due  process  of  law. 
The  answer  was:  however  exceptional  it  may  be,  as  tested  by 
definitions  and  principles  of  ortlinary  procedure,  nevertheless,  this, 
in  substance,  has  been  immemorially  the  actual  law  of  the  land, 
and,  therefore,  is  due  process  of  law.  But  to  hold  that  such  a 
characteristic  is  essential  to  due  process  of  law,  would  be  to  deny 
every  quality  of  the  law  but  its  age,  and  to  render  it  incapable  of 
progress  or  improvement.  It  would  be  to  stamp  upon  our  juris- 
prudence the  unchangeableness  attributed  to  the  laws  of  the  Medes 
and  Persians. 

This  would  be  all  the  more  singular  and  surprising,  in  this  quick 
and  active  age,  when  we  consider  that,  owing  to  the  progressive 
development  of  legal  ideas  and  institutions  in  England,  the  words 
of  Magna  Charta  stood  for  very  different  things  at  the  time  of  the 
separation  of  the  American  colonies  from  what  they  represented 
originally.  For  at  first  the  words  nisi  per  legale  judicium  parium 
had  no  reference  to  a  jury;  they  applied  only  to  the  pares  regni,  who 
were  the  constitutional  judges  in  the  Court  of  Exchequer  and 
coram  rege.  Bac.  Abr.  Juries,  7th  Ed.,  Lond.,  note,  Reeves,  H.  L. 
41.  And  as  to  the  grand  jury  itself,  we  learn  of  its  constitution  and 
functions  from  the  Assize  of  Clarendon,  a.d.  1164,  and  that  of 
Northampton,  a.d.  1176,  Stubbs'  Charters,  143,  150.  By  the  latter 
of  these,  which  was  a  republication  of  the  former,  it  was  provided, 
that  "  if  any  one  is  accused  before  the  justices  of  our  Lord  the  King 
of  murder,  or  theft,  or  robbery,  or  of  harbouring  persons  commit- 
ting those  crimes,  or  of  forgery  or  arson,  by  the  oath  of  twelve 
knights  of  the  hundred,  or,  if  there  are  no  knights,  by  the  oath  of 
twelve  free  and  lawful  men,  and  by  the  oath  of  four  men  from  each 
township  of  the  hundred,  let  him  go  to  the  ordeal  of  water,  and,  if 
he  fails,  let  him  lose  one  foot.  And  at  Northampton  it  was  added, 
for  greater  strictness  of  justice  (pro  rigor e  justitice),  that  he  shall 
lose  his  right  hand  at  the  same  time  w^tli  his  foot,  and  abjure  the 
realm  and  exile  himself  from  the  realm  within  forty  days.  And 
if  he  is  acquitted  by  the  ordeal,  let  him  find  pledges  and  remain  in 
the  kingdom,  unless  he  is  accused  of  murder  or  other  base  felony 
by  the  body  of  the  country  and  the  lawful  knights  of  the  country; 
but  if  he  is  so  accused  as  aforesaid,  although  he  is  acquitted  by  the 
ordeal  of  water,  nevertheless  he  must  leave  the  kingdom  in  forty 
days  and  take  his  chattels  with  him,  subject  to  the  rights  of  his 
lords,  and  he  must  abjure  the  kingdom  at  the  mercy  of  our  Lord 
the  King." 


HURTADO    V.    CALIFORNIA.  591 

"  The  system  thus  estabhshed,"  says  Mr.  Justice  Stephen,  1  Hist. 
Crim.  Law  of  England,  252,  "  is  simple.  The  body  of  the  country  are  the 
accusers.  Their  accusation  is  practically  equivalent  to  a  conviction, 
subject  to  the  chance  of  a  favorable  termination  of  the  ordeal  by  water. 
If  the  ordeal  fails,  the  accused  person  loses  his  foot  and  his  hand.  If  it 
succeeds,  he  is  nevertheless  to  be  banished.  Accusation,  therefore,  was 
equivalent  to  banishment,  at  least." 

When  we  add  to  this  that  the  primitive  grand  jur>^  heard  no 
witnes.ses  in  support  of  the  truth  of  the  charges  to  be  preferred, 
but  presented  upon  their  oAvn  knowledge,  or  indicted  upon  common 
fame  and  general  suspicion,  we  shall  be  ready  to  acknowledge  that 
it  is  better  not  to  go  too  far  back  into  antiquitj^  for  the  best  se- 
curities for  our  "  ancient  liberties."  It  is  more  consonant  to  the 
true  philosophy  of  our  hi.storical  legal  institutions  to  say  that  the 
spirit  of  personal  liberty  and  individual  right,  which  they  embodied, 
was  preserved  and  developed  by  a  progressive  growth  and  wise 
adaptation  to  new  circumstances  and  situations  of  the  forms  and 
proces.ses  found  fit  to  give,  from  time  to  time,  new'  expression  and 
greater  effect  to  modern  ideas  of  self-govermnent. 

This  flexibility  and  capacity  for  growth  and  adaptation  is  the 
peculiar  boast  and  excellence  of  the  common  law.  .  .  . 

The  Con.stitution  of  the  United  States  was  ordained,  it  is  true, 
by  descendants  of  Englishmen,  who  inherited  the  traditions  of 
English  laAV  and  history;  but  it  was  made  for  an  undefined  and 
expanding  future,  antl  for  a  people  gatheretl  and  to  be  gathered 
from  many  nations  and  of  many  tongues.  And  while  we  take  just 
pride  in  the  principles  and  institutions  of  the  common  law,  we  are 
not  to  forget  that  in  lands  where  other  systems  of  jurisprudence 
prevail,  the  ideas  and  processes  of  civil  justice  are  also  not  im- 
knowm.  Due  process  of  law,  in  spite  of  the  absolutism  of  conti- 
nental governments,  is  not  alien  to  that  code  which  survived  the 
Roman  Empire  as  the  foundation  of  modern  civilization  in  Europe, 
and  which  has  given  us  that  fundamental  maxim  of  distributive 
justice  —  suum  cuique  trihuere.  There  is  nothing  in  Magna 
Charta,  rightly  construed  as  a  broad  charter  of  public  right  and 
law,  which  ought  to  exclude  the  best  ideas  of  all  systems  and  of 
every  age;  and  as  it  was  the  characteristic  principle  of  the  common 
law  to  draw  its  inspiration  from  every  fountain  of  justice,  w^e  are 
not  to  assume  that  the  sources  of  its  supplj'-  have  been  exhausted. 
On  the  contrary,  we  should  expect  that  the  new^  and  various  experi- 
ences of  our  own  situation  and  system  will  mould  and  shape  it  into 
new  and  not  less  useful  forms. 


592  PIIOCEDUKE. 

The  concessions  of  Magna  Charta  were  wrung  from  the  King  as 
guaranties  against  the  oppressions  and  usuri)ations  of  liis  preroga- 
tive. It  did  not  enter  into  the  minds  of  the  barons  to  provide 
security  against  their  own  body  or  in  favor  of  the  Commons  by 
limiting  the  power  of  ParUament;  so  that  l)ills  of  attainder,  ex  post 
facto  laws,  laws  declaring  forfeitures  of  estates,  and  other  arbitrary 
acts  of  legislation  which  occur  so  frequently  in  English  history, 
were  never  regarded  as  inconsistent  with  the  law  of  the  land;  for 
notwithstanding  what  was  attributed  to  Lord  Coke  in  Bonham's 
Case,  8  Rep.  115,  118a,  the  omnipotence  of  Parliament  over  the 
common  law  was  absolute,  even  agamst  common  right  and  rea.son. 
The  actual  and  practical  security  for  English  liberty  against 
legislative  tyranny  was  the  power  of  a  free  public  opinion  repre- 
sented by  the  Commons. 

In  this  country  written  constitutions  were  deemed  essential  to 
protect  the  rights  and  liberties  of  the  people  against  the  encroach- 
ments of  power  delegated  to  their  governments,  and  the  provisions 
of  Magna  Charta  were  incorporated  into  Bills  of  Rights.  They 
were  limitations  upon  all  the  powers  of  government,  legislative  as 
well  as  executive  and  judicial. 

It  necessarily  happened,  therefore,  that  as  these  broad  and  gen- 
eral maxims  of  liberty  and  justice  held  in  our  system  a  different 
place  and  performed  a  different  function  from  their  position  and 
office  in  English  constitutional  history  and  law,  they  would  receive 
and  justify  a  corresponding  and  more  comprehensive  interpreta- 
tion. Applied  in  England  only  as  guards  against  executive 
usurpation  and  tyranny,  here  they  have  become  bulwarks  also 
against  arbitrary  legislation;  but,  in  that  application,  as  it  would 
be  incongruous  to  measure  and  restrict  them  by  the  ancient  cus- 
tomary English  law,  they  must  be  held  to  guarantee  not  particular 
forms  of  procedure,  but  the  very  substance  of  individual  rights  to 
life,  liberty,  and  property. 

Restraints  that  could  be  fastened  upon  executive  authority 
with  precision  and  detail,  might  prove  obstructive  and  injurious 
when  imposed  on  the  just  and  necessary  discretion  of  legislative 
power;  and,  while  in  every  instance,  laws  that  violated  express 
and  specific  injunctions  and  prohibitions,  might,  without  embar- 
rassment, be  judicially  declared  to  be  void,  yet,  any  general 
principle  or  maxim,  founded  on  the  essential  nature  of  law,  as  a 
just  and  reasonable  expression  of  the  public  mil  and  of  govern- 
ment, as  instituted  by  popular  consent  and  for  the  general  good, 
can  only  be  applied  to  cases  coming  clearly  within  the  scope  of  its" 


HURTADO    V.    CALIFORNIA.  593 

spirit  and  purpose,  and  not  to  legislative  provisions  merely  estab- 
lishing forms  and  modes  of  attainment.  Such  regulations,  to 
adopt  a  sentence  of  Burke's,  "  may  alter  the  mode  and  application 
but  have  no  power  over  the  substance  of  original  justice."  Tract 
on  the  Popery  Laws,  6  Burke's  Works,  ed.  Little  &  Brown,  323.  .  .  . 
We  are  to  construe  this  phrase  in  the  Fourteenth  Amendment 
by  the  usus  loquendi  of  the  Constitution  itself.  The  same  words 
are  contained  in  the  Fifth  Amendment.  That  article  makes 
specific  and  express  provision  for  perpetuating  the  institution  of 
the  grand  jury,  so  far  as  relates  to  prosecutions  for  the  more 
aggravated  crimes  under  the  laws  of  the  United  States.  .  .  . 

According  to  a  recognized  canon  of  interpretation,  especially 
applicable  to  formal  and  solemn  instruments  of  constitutional  law, 
we  are  forbitlden  to  assume,  without  clear  reason  to  the  contrary, 
that  any  part  of  this  most  important  amendment  is  superfluous. 
The  natural  and  obvious  inference  is,  that  in  the  sense  of  the  Con- 
stitution, "  due  process  of  law  "  was  not  meant  or  intended  to 
include,  ex  id  termini,  the  mstitution  and  procedure  of  a  grand  jury 
in  any  case.     The  conclusion  is  equally  irresistible,  that  when  the 
same  phrase  was  employed  in  the  Fourteenth  Amendment  to  re- 
strain the  action  of  the  States,  it  was  used  in  the  same  sense  and 
with  no  greater  extent;  and  that  if  in  the  adoption  of  that  amend- 
ment it  had  been  part  of  its  purpose  to  perpetuate  the  institution 
of  the  grand  jury  in  all  the  States,  it  would  have  embodied,  as  did 
the  Fifth  .\mendment,  express  declarations  to  that  efTect.      Due 
process  of  law  in  the  latter  refers  to  that  law  of  the  land  which 
derives  its  authority  from  the  legislative  powers  conferred  upon 
Congress  by  the  Constitution  of  the  United  States,  exercised  within 
the  limits  therein  prescribed,  and  interpreted  according  to  the 
prmciples  of  the  common  law.     In  the  Fourteenth  Amendment,  by 
parity  of  reason,  it  refers  to  that  law  of  the  land  in  each  State,  which 
derives  its  authority  from  the  inherent  and  reserved  powers  of  the 
State,  exerted  within  the  limits  of  those  fundamental  principles  of 
liberty  and  justice  which  lie  at  the  base  of  all  our  civil  and  political 
institutions,  and  the  greater  security  for  which  resides  in  the  right 
of  the  people  to  make  their  own  laws,  and  alter  them  at  their 
pleasure.  .  .  . 

But  it  is  not  to  be  supposed  that  these  legislative  powers  are 
absolute  and  despotic,  and  that  the  amendment  prescribing  due 
process  of  law  is  too  vague  and  indefinite  to  operate  as  a  practical 
restraint.  It  is  not  every  act,  legislative  in  form,  that  is  law. 
Law  is  something  more  than  mere  will  exerted  as  an  act  of  power. 


594  PROCEDURE. 

It  must  be  not  a  spooial  rule  for  a  particular  person  or  a  particular 
case,  but,  in  the  language  of  Mr.  \\'el)8ter,  in  his  familiar  definition, 
"  the  general  law,  a  law  which  hears  before  it  condenms,  which 
proceeds  upon  inquiry,  and  renders  judgment  only  after  trial,"  so 
"  that  every  citizen  shall  hold  his  life,  liberty,  property  and 
immunities  under  the  protection  of  the  general  rules  which  govern 
society,"  and  thus  excluding,  as  not  due  process  of  law,  acts  of 
attainder,  bills  of  pains  and  penalties,  acts  of  confiscation,  acts 
reversing  judgments,  and  acts  directly  transferring  one  man's 
estate  to  another,  legislative  judgments  and  d(>crees,  and  other 
similar  special,  partial  and  arbitrary  exertions  of  power  under  the 
forms  of  legislation.  Arbitrary  power,  enforcing  its  edicts  to  the  in- 
jury  of  the  persons  and  property  of  its  subjects,  is  not  law,  whether 
manifested  as  the  decree  of  a  personal  monarch  or  of  an  imper- 
sonal multitude.  And  the  limitations  imposed  by  our  constitu- 
tional law  upon  the  action  of  the  governments,  both  State  and 
national,  are  essential  to  the  preservation  of  public  and  private 
rights,  notwithstanding  the  representative  character  of  our  politi- 
cal institutions.  The  enforcement  of  these  limitations  by  judicial 
l^rocess  is  the  device  of  self-governing  communities  to  protect  the 
rights  of  individuals  and  minorities,  as  well  against  the  power  of 
numbers,  as  against  the  violence  of  public  agents  transcending  the 
limits  of  lawful  authority,  even  when  actmg  in  the  name  and  wield- 
ing the  force  of  the  government.  .  .  . 

The  constitution  of  Connecticut,  adopted  in  1818  and  in  force 
when  the  Fourteenth  Amendment  took  effect,  requires  an  indict- 
ment or  presentment  of  a  grand  jury  only  in  cases  where  the  pun- 
ishment of  the  crime  charged  is  death  or  imprisonment  for  life,  and 
yet  it  also  declares  that  no  person  shall ''  be  deprived  of  life,  liberty, 
or  property  but  by  due  course  of  law."  It  falls  short,  therefore,  of 
that  measure  of  protection  which  it  is  claimed  is  guaranteed  by 
Magna  Charta  to  the  right  of  personal  liberty.  .  .  . 

We  are  unable  to  say  that  the  substitution  for  a  presentment  or 
indictment  by  a  grand  jury  of  the  proceeding  by  information,  after 
examination  and  commitment  by  a  magistrate,  certifying  to  the 
probable  guilt  of  the  defendant,  with  the  right  on  his  part  to  the 
aid  of  counsel,  and  to  the  cross-examination  of  the  witnesses  pro- 
duced for  the  prosecution,  is  not  due  process  of  law.  It  is,  as  we 
have  seen,  an  ancient  proceeding  at  common  law,  which  might 
include  every  case  of  an  offense  of  less  grade  than  a  felony,  except 
misprision  of  treason;  and  in  every  circumstance  of  its  admin- 
istration, as  authorized  by  the  statute  of  California,  it  carefully 


EILENBECKER   V.    DISTRICT   COURT   OF    PLYMOUTH    CO.         595 

considers  and  guards  the  substantial  interest  of  the  prisoner. 
It  is  merely  a  prehminary  proceeding,  and  can  result  in  no  final 
judgment,  except  as  the  consequence  of  a  regular  judicial  trial, 
conducted  precisely  as  in  cases  of  indictments. 

In  reference  to  this  mode  of  proceeding  at  the  common  law,  and 
which  he  says  "  is  as  ancient  as  the  common  law  itself,"  Black- 
stone  adds  (4  Com.  305) : 

"  And  as  to  those  offenses  in  which  informations  were  allowed  as  well  as 
indictments,  so  long  as  they  were  confined  to  this  high  and  respectable 
jurisdiction,  and  were  carried  on  in  a  legal  and  regular  course  in  His 
Majesty's  Court  of  Kjng's  Bench,  the  subject  had  no  reason  to  complain. 
The  same  notice  was  given,  the  same  process  was  issued,  the  same  pleas 
were  allowed,  the  same  trial  by  jury  was  had,  the  same  judgment  was 
given  by  the  same  judges,  as  if  the  prosecution  had  originally  been  by 
indictment." 

For  these  reasons,  finding  no  error  therein,  the  judgment  of  the 
Supreme  Court  of  California  is  Affirmed. 

Harlan,  J.,  dissenting.  .  .  . 
Field,  J.,  did  not  take  part  in  the  decision  of  this  case. 


EILENBECKER    v.    DISTRICT    COURT    OF    PLYMOUTH 

COUNTY. 

Supreme  Court  of  the  United  States.     1890. 

1134  United  Slates,  31.) 

Error  to  the  Supreme  Court  of  Iowa. 

The  case  is  stated  in  the  opinion. 

W.  A.  McKenney,  for  plaintiffs  in  error;  and  J.  S.  Struble  and 
others,  contra. 

Miller,  J.,  delivered  the  opinion  of  the  court. 

The  judgment  which  we  are  called  upon  to  review  is  one  affirm- 
ing the  judgment  of  the  District  Court  of  Plymouth  County  in 
that  State.  This  judgment  imposed  a  fine  of  five  hundred  dollars 
and  costs  on  each  of  the  six  plaintiffs  in  error  in  this  case,  and 
imprisonment  in  the  jail  of  Plymouth  County  for  a  period  of  three 
months,  but  they  were  to  be  released  from  confinement  if  the  fine 
imposed  was  paid  within  thirty  days  from  the  date  of  the  judgment. 


59G  rnocEDURE. 

This  sentence  was  pronounced  by  the  court  as  a  punislimont  for 
contempt  in  refusing  to  obey  a  writ  of  injunction  issued  by  that 
court,  enjoining  and  restraining  each  of  the  defendants  from  selling, 
or  keeping  for  sale,  any  intoxicating  liquors,  including  ale,  wine  and 
beer,  in  Plymouth  County,  and  the  sentence  was  imposed  upon  a 
hearing  by  the  court,  wthout  a  jury,  and  upon  evidence  in  the 
form  of  affidavits. 

It  appears  that  on  the  11th  day  of  June,  1885,  separate  petitions 
in  equity  were  filed  in  the  District  Court  of  Plymouth  County 
against  each  of  these  plaintiffs  in  error,  praying  that  they  should  be 
enjoined  from  selling,  or  keeping  for  sale,  intoxicating  liquors, 
including  ale,  wine  and  l)eer,  in  that  county.  On  the  Gth  of  July 
the  court  ordered  the  issue  of  preliminary  injunctions  as  prayed. 
On  the  7th  of  July  the  writs  were  served  on  each  of  the  defendants 
in  each  proceeding  by  the  sheriff  of  Plymouth  County.  On  the 
24th  of  October,  complaints  were  filed,  alleging  that  these  plain- 
tiffs in  error  had  violated  this  injunction  by  selling  intoxicating 
liquors  contrary  to  the  law  and  the  terms  of  the  injunction  served 
on  them,  and  asking  that  they  be  required  to  show  cause  why  they 
should  not  be  punished  for  contemi^t  of  court.  A  rule  was  granted 
accordingly,  and  the  court,  having  no  personal  knowledge  of  the 
facts  charged,  ordered  that  a  hearing  be  had  at  the  next  term  of  the 
court,  upon  affidavits;  and  on  the  8th  day  of  March,  1886,  it 
being  at  the  regular  term  of  said  District  Court,  separate  trials 
were  had  upon  evidence  in  the  form  of  affidavits,  by  the  court 
without  a  jury,  upon  which  the  plaintiffs  were  found  guilty  of  a 
violation  of  the  writs  of  injunction  issued  in  said  cause,  and  a 
sentence  of  fine  and  imprisonment,  as  already  stated,  entered 
against  them. 

Each  plaintiff  obtained  from  the  Supreme  Court  of  the  State  of 
Iowa,  upon  petition,  a  writ  of  certiorari,  in  which  it  was  alleged 
that  the  District  Court  of  Ph-mouth  County  had  acted  without 
jurisdiction  and  illegally  in  rendering  this  judgment,  and  by 
agreement  of  counsel,  and  with  the  consent  of  the  Supreme  Court 
of  Iowa,  the  cases  of  the  six  appellants  in  this  court  were  sub- 
mitted together  and  tried  on  one  transcript  of  record.  That 
court  affirmed  the  judgment  of  the  District  Court  of  "Ph^mouth 
County,  and  to  that  judgment  of  affirmance  this  writ  of  error  is 
prosecuted. 

The  errors  assigned  here  are  that  the  Supreme  Court  of  Iowa 
failed  to  give  effect  to  clause  3  of  section  2  of  Article  III  of  the 
Constitution  of  the  United  States,  which  provides  that  the  trial 


EILENBECKER    V.    DISTRICT    COURT    OF    PLYMOUTH    CO.  597 

of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury,  and 
also  to  the  provisions  of  Article  VI  of  the  amendments  to  the  Con- 
stitution, which  provides  that  in  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury. 

The  second  assignment  is,  that  the  Supreme  Court  of  Iowa  erred 
in  holding  that  plaintiffs  could  be  fined  and  imprisoned  without 
first  being  presented  by  a  grand  jury,  and  could  be  tried  on  ex 
parte  affidavits,  which  decision,  it  is  said,  is  in  conflict  with  and 
contrary  to  the  provisions  of  both  Articles  V  and  VI  of  the  amend- 
ments to  the  Constitution  of  the  United  States,  the  latter  of  which 
provides  that  in  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  be  confronted  by  the  witnesses  against  him. 

The  fourth  assignment  is,  that  the  Supreme  Court  erred  in  not 
holding  that  section  12  of  chapter  143  of  the  acts  of  the  twentieth 
general  assembly  of  Iowa  is  in  conflict  with  Article  VIII  of  the 
amendments  to  the  Constitution  of  the  United  States,  which  pro- 
vides that  excessive  fines  shall  not  be  imposed,  nor  cruel  and  un- 
usual punishments  inflicted.  These  three  assignments,  as  will  be 
presently  seen,  ma}'  be  disposed  of  together. 

The  third  assignment  is,  that  the  Supreme  Court  of  Iowa  erred 
in  not  holding  that  said  chapter  143  of  the  acts  of  the  twentieth 
general  assembly  of  Iowa,  and  especially  section  12  of  said  chapter, 
is  void,  and  in  conflict  with  section  1  of  Article  XIV  of  the  amend- 
ments to  the  Constitution  of  the  United  States,  in  this,  that  it 
deprives  persons  charged  with  selling  intoxicating  liquors  of  the 
equal  protection  of  the  laws,  and  it  prejudices  the  rights  and  priv- 
ileges of  that  particular  class  of  persons,  and  denies  to  them  the 
right  of  trial  by  jury,  while  in  all  other  prosecutions  the  accused 
must  first  be  presented  by  indictment,  and  then  have  the  benefit 
of  trial  by  a  jur>'  of  his  peers. 

The  first  three  of  these  assignments  of  error,  as  we  have  stated 
them,  being  the  first  and  second  and  fourth  of  the  assignments  as 
numbered  in  the  brief  of  the  plaintiffs  in  error,  are  disposed  of  at 
once  by  the  principle  often  decided  by  this  court,  that  the  first 
eight  articles  of  the  amendments  to  the  Constitution  have  reference 
to  powers  exercised  by  the  government  of  the  United  States  and 
not  to  those  of  the  States.  Livingston  v.  Moore,  7  Pet.  469;  The 
Justices  V.  Murray,  9  Wall.  274;  Edwards  v.  Elliott,  21  Wall.  532; 
United  States  v.  Cruikshank,  92  U.  S.  542;  W^alker  v.  Sauvinet,  92 
U.  S.  90;  Fox  v.  Ohio,  5  How.  410;  Holmes  v.  Jennison,  14  Pet. 
540;  Presser  v.  Illinois,  116  U.  S.  252. 


598  PROCEDURE. 

The  limitation,  therefore,  of  Articles  V  and  VI  and  VIII  of  those 
amendments,  being  intended  exclusively  to  apply  to  the  powers 
exercised  by  the  government  of  the  I'nited  States,  whether  by 
Congress  or  by  the  judiciary,  and  not  as  limitations  upon  the 
powers  of  the  States,  can  have  no  application  to  the  })resent  case, 
and  the  same  observation  is  more  obviously  true  in  regard  to  clause 
3  of  section  2  of  Article  III  of  the  original  Constitution,  that  the 
trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury. 
This  Article  III  of  the  Constitution  is  intentled  to  define  the  judicial 
power  of  the  United  States,  and  it  is  in  regard  to  that  power  that 
the  declaration  is  made  that  the  trial  of  all  crimes,  except  in  cases 
of  impeachment,  shall  be  by  jury.  It  is  impossible  to  examine  the 
accompanying  provisions  of  the  Constitution  without  seeing  very 
clearly  that  this  provision  was  not  intended  to  be  applied  to  trials 
in  the  state  courts. 

This  leaves  us  alone  the  assigrmient  of  error  that  the  Supreme 
Court  of  Iowa  disregarded  the  ])rovisions  of  section  1  of  Article 
XIV  of  the  amendments  to  the  Constitution  of  the  United 
States.  .  . 

The  first  observation  to  be  made  on  this  subject  is,  that  the 
plaintiffs  in  error  are  seeking  to  reverse  a  judgment  of  the  District 
Court  of  Plymouth  Count}',  Iowa,  imposing  upon  them  a  fine  and 
imprisonment  for  violating  the  injunction  of  that  court,  which  had 
been  regularly  issued  and  served  u]wn  them.  Of  the  intentional 
violation  of  this  injunction  by  plaintiffs  we  are  not  permitted  to 
entertain  any  doubt,  and,  if  we  did,  the  record  in  the  case  makes  it 
plain.  Neither  is  it  doubted  that  they  had  a  regular  and  fair  trial, 
after  due  notice,  and  opportunity  to  defend  themselves  in  open 
court  at  a  regular  term  thereof. 

The  contention  of  these  parties  is,  that  they  were  entitled  to  a 
trial  by  jury  on  the  question  as  to  whether  they  were  guilty  or 
not  guilty  of  the  contempt  charged  upon  them,  and  because  they 
did  not  have  this  trial  by  jury  they  say  that  they  were  deprived  of 
their  liberty  without  due  process  of  law  within  the  meaning  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 

If  it  has  ever  been  understood  that  proceedings  according  to  the 
common  law  for  contempt  of  court,  have  been  subject  to  the  right 
of  trial  by  jury,  we  have  been  unable  to  find  any  instance  of  it.  It 
has  always  been  one  of  the  attributes  —  one  of  the  powders  neces- 
sarily incident  to  a  court  of  justice  —  that  it  should  have  this  powder 
of  vindicating  its  dignity,  of  enforcing  its  orders,  of  protecting 


EILENBECKER   V.    DISTRICT    COURT   OF   PLl^MOUTH    CO.  599 

itself  from  insult,  without  the  necessity  of  calling  upon  a  jury  to 
assist  it  in  the  exercise  of  this  power. 

In  the  ease  in  this  court  of  Ex  parte  Terr3%  128  U.  S.  289,  this 
doctrine  is  fully  asserted  and  enforced;  quoting  the  language  of  the 
court  in  the  case  of  Anderson  v.  Dunn,  6  Wheat.  204,  227,  where  it 
was  said  that  "  courts  of  justice  are  universally  acknowledged  to  be 
vested,  by  their  ver>"  creation,  with  power  to  impose  silence,  re- 
spect and  decorum  in  their  presence,  and  submission  to  their 
lawful  mandates";  citing  also  with  approbation  the  language  of 
the  Supreme  Judicial  Court  of  IVIassachusetts  in  Cart^\Tight's  Case, 
114  Mass.  230,  238.  .  .  . 

The  still  more  recent  cases  of  Ex  parte  Savan,  131  U.  S.  267,  and 
Ex  parte  Cuddy,  131  U.  S.  280,  assert  verj'  strongly  the  same 
principle.  .  .  . 

So  far  from  any  statute  on  this  subject  limiting  the  power  of  the 
courts  of  Iowa,  the  act  of  the  legislature  of  that  State,  authorizing 
the  injunction  which  these  parties  are  charged  with  violating, 
expressly  declares  that  for  violating  such  injunction  a  person  doing 
so  shall  be  punished  for  the  contempt  by  a  fine  of  not  less  than  five 
hundred  or  more  than  a  thousand  dollars,  or  by  imprisoimient  in 
the  county  jail  not  more  than  six  months,  or  by  both  such  fine  and 
imj^risonment,  in  the  discretion  of  the  court.  So  that  the  proceed- 
ing by  which  the  fine  and  imprisonment  imposed  upon  these  parties 
for  contempt  in  violating  the  injunction  of  the  court,  regularly 
issued  in  a  suit  to  which  they  were  parties,  is  due  process  of  law, 
and  always  has  been  due  process  of  law,  and  is  the  process  or  pro- 
ceeding by  which  courts  have  from  time  immemorial  enforced  the 
execution  of  their  orders  and  decrees,  and  cannot  be  said  to  deprive 
the  parties  of  their  liberty  or  property  without  due  process  of  law. 

The  counsel  for  plaintiffs  in  error  seek  to  evade  the  force  of  this 
reasoning  by  the  proposition  that  the  entire  statute  under  which 
this  injunction  was  issued  is  in  the  nature  of  a  criminal  proceeding, 
and  that  the  contempt  of  court  of  which  these  parties  have  been 
found  guilty  is  a  crime  for  the  punishment  of  which  they  have  a 
right  to  trial  by  jur\'. 

We  cannot  accede  to  this  view  of  the  subject.  Whether  an 
attachment  for  a  contempt  of  court,  and  the  judgment  of  the  court 
punishing  the  party  for  such  contempt,  is  in  itself  essentially  a 
criminal  proceeding  or  not,  we  do  not  find  it  necessary  to  decide. 
We  simply  hold  that,  whatever  its  nature  may  be,  it  is  an  offense 
against  the  court  and  against  the  administration  of  justice,  for 
which  courts  have  always  had  the  right  to  punish  the  party  by 


500  PROCEDURE. 

summary  proceeding  and  without  trial  by  jury;  and  that  in  that 
sense  it  is  due  process  of  law  within  the  meaning  of  the  Fourteenth 
Amendment  of  the  Constitution.  We  do  not  suppose  that  that 
provision  of  the  Constitution  was  ever  intended  to  interfere  witli 
or  abolish  the  powers  of  the  courts  in  i)roceedings  for  contempt, 
whether  this  contempt  occurred  in  the  course  of  a  criminal  pro- 
ceeding or  of  a  civil  suit.  .  .  . 

We  think  it  was  within  the  power  of  the  court  of  Plymouth 
County  to  issue  the  writs  of  injunction  in  these  cases,  and  that  the 
disobedience  to  them  by  the  plaintiffs  in  error  subjected  them  to 
the  proceedings  for  contempt  which  were  had  before  that  court. 

The  judgment  of  the  Supreme  Court  of  Iowa  is 

Affirmed.^ 


MAXWELL   V.   DOW. 
Supreme  Court  of  the  United  States.     1900. 

[176  United  Slates,  581.] 

Error  to  the  Supreme  Court  of  Utah. 

The  statement  of  the  case  is  in  the  opinion  of  the  court. 

J.  W.  N.  Whitecotton,  for  plaintiff  in  error;  and  A.  C.  Bishop  and 
another,  contra. 

Peckham,  J.,  delivered  the  opinion  of  the  court. 

On  the  27th  of  June,  1898,  an  information  was  filed  against  the 
plaintiff  in  error  by  the  prosecuting  attorney  of  the  county,  in  a 
state  court  of  the  State  of  Utah,  charging  him  with  the  crime  of 
robbery  committed  within  the  county  in  May,  1898.  In  Septem- 
ber, 1898,  he  was  tried  before  a  jury  composed  of  but  eight  jurors, 
and  convicted  and  sentenced  to  imprisonment  in  the  state  prison 
for  eighteen  years,  and  since  that  time  has  been  confined  in  prison, 
undergoing  the  sentence  of  the  state  court. 

In  May,  1899,  he  applied  to  the  Supreme  Court  of  the  State  for  a 
writ  of  habeas  corpus,  and  alleged  in  his  sworn  petition  that  he  was 
a  natural-born  citizen  of  the  United  States,  and  that  his  imprison- 
ment was  unlawful,  because  he  was  prosecuted  under  an  infor- 
mation instead  of  by  indictment  by  a  grand  jury,  and  was  tried  by  a 

1  See  Gompers  v.  Bucks  Stove  &  Range  Co.,  221  U.  S.  418,  441-450  (1911). 
—  Ed. 


MAXWELL    V.    DOW.  601 

jur\'  composed  of  eight  instead  of  twelve  jurors.  He  specially  set 
up  and  claimed  (1)  that  to  prosecute  him  by  information  abridged 
his  privileges  and  immunities  as  a  citizen  of  the  United  States, 
under  article  5  of  the  amendments  to  the  Constitution  of  the 
United  States,  and  also  violated  section  1  of  article  14  of  those 
amendments ;  (2)  that  a  trial  by  jury  of  only  eight  persons  abridged 
his  privileges  and  immunities  as  a  citizen  of  the  United  States, 
under  article  6,  and  also  violated  section  1  of  article  14  of  such 
amendments;  (3)  that  a  trial  by  such  a  jury  and  his  subsequent 
imprisonment  by  reason  of  the  vercUct  of  that  jury  deprived  him 
of  his  liberty  without  due  process  of  law,  in  violation  of  section  1  of 
article  14,  which  provides  that  no  State  shall  deprive  any  person 
of  life,  liberty  or  property,  vnthout  due  process  of  law. 

The  Supreme  Court  of  the  State,  after  a  hearing  of  the  case, 
denied  the  petition  for  a  writ,  and  remanded  the  prisoner  to  the 
custody  of  the  keeper  of  the  state  prison,  to  undergo  the  remainder 
of  his  sentence,  and  he  then  sued  out  a  writ  of  error  and  brought  the 
case  here. 

The  questions  to  be  determined  in  this  court  are,  (1)  as  to  the 
validity,  vvith  reference  to  the  federal  Constitution,  of  the  pro- 
ceeding against  the  plaintiff  in  error  on  an  information  instead  of 
by  an  indictment  by  a  grand  jury;  and  (2)  the  validity  of  the  trial 
of  the  plaintiff  in  error  Ijy  a  jury  composed  of  eight  instead  of 
twelve  jurors.  .  .  . 

The  objection  that  the  proceeding  by  information  does  not 
amount  to  due  process  of  law  .  .  .  must  be  regarded  as  settled  by 
the  case  of  Hurtado  v.  California,  110  U.  S.  516.  .  .  . 

But  the  plaintiff  in  error  contends  that  the  Hurtado  case  did  not 
decide  the  question  whether  the  .state  law  violated  that  clause  in  the 
Fourteenth  Amenchnent  which  provides  that  no  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States.  Although  the  opinion  is  mainly 
devoted  to  an  inquiry  whether  the  California  law  was  a  violation 
of  the  "  due  process  clause  "  of  the  above-mentioned  amenchnent, 
yet  the  matter  in  issue  in  the  case  was  as  to  the  validity  of  the  state 
law,  and  the  court  held  it  valid.  It  was  alleged  by  the  counsel  for 
the  plaintiff  in  error,  before  the  court  which  passed  sentence,  that 
the  proceeding  was  in  conflict  with  the  Fifth  and  the  Fourteenth 
Amendments,  and  those  grounds  were  before  this  court.  The 
Fifth  Amendment  was  reft&rred  to  in  the  opinion  delivered  in  this 
court,  and  it  was  held  not  to  have  been  violated  by  the  state  law, 
although  that  amendment  provides  for  an  indictment  by  a  grand 


002  PROCEUiKi:. 

jury.  This  decision  could  not  liave  been  arrived  at  if  a  citizen  of 
the  United  States  were  entitled,  by  virtue  of  that  clause  of  the 
Fourteenth  Amendment  relating  to  the  privileges  and  immunities 
of  citizens  of  the  United  States,  to  claim  in  a  state  court  that  he 
could  not  be  prosecuted  for  an  infamous  crime  unless  upon  an 
indictment  by  a  grand  jury.  In  a  federal  court  no  person  can  be 
held  to  answer  for  a  capital  or  otherwise  infamous  crime  unless  by 
indictment  by  a  grand  jury,  with  the  exceptions  stated  in  the  Fifth 
Amendment.  Yet  this  amendment  was  held  in  the  Hurt  ado  case 
not  to  apply  to  a  prosecution  for  murder  in  a  state  court  pursuant 
to  a  state  law.  The  claim  was  made  in  the  case  (and  referred  to  in 
the  opinion)  that  the  adoption  of  the  Fourteenth  Amendment 
provided  an  additional  security  to  the  individual  against  oppres- 
sion by  the  States  themselves,  and  limited  their  j)ow(ts  to  the  same 
extent  as  the  amendments  theretofore  adoi)te(l  had  limitetl  the 
powers  of  the  federal  government.  By  holding  that  the  convic- 
tion upon  an  information  was  valid,  the  court  necessarily  held  that 
an  indictment  was  not  necessary;  that  exemption  from  trial  for 
an  infamous  crime,  excepting  under  an  indictment,  was  not  one  of 
those  privileges  or  immunities  of  a  citizen  of  the  United  States 
which  a  State  was  prohibited  from  abridging.  The  whole  case  was 
probably  regarded  as  involved  in  the  question  as  to  due  process  of 
law.  The  particular  objection  founded  upon  the  privileges  and 
immunities  of  citizens  of  the  United  States  is  now  taken  and 
insisted  upon  in  this  case. 

Under  these  circumstances  it  may  not  be  improper  to  inquire 
as  to  the  validity  of  a  conviction  in  a  state  court,  for  an  infamous 
crime,  upon  an  information  filed  by  the  proper  officer  under  the  au- 
thority of  the  constitution  and  laws  of  the  State  wherein  the  crime 
was  committed  and  the  conviction  took  place;  confining  the 
inquiry  to  the  question  of  the  effect  of  the  provision  in  the  Four- 
teenth Amendment  prohibiting  the  States  from  making  or  .enforc- 
ing any  law  which  abridges  the  privileges  or  immunities  of  citizens 
of  the  United  States.  .  .  . 

The  inquiry  may  be  pursued  in  connection  with  that  in  regard  to 
the  validity  of  the  provision  in  the  state  constitution  for  a  trial 
before  a  jury  to  be  composed  of  but  eight  jurors  in  criminal  cases 
which  are  not  capital.  One  of  the  objections  to  this  provision  is 
that  its  enforcement  has  abridged  the  privileges  and  immunities  of 
the  plaintiff  in  error  as  a  citizen  of  th?>  United  States;  the  other 
objection  being  that  a  conviction  thus  obtained  has  resulted  in 
depriving  the  plaintiff  in  error  of  his  liberty  without  due  process  of 


♦  MAXWELL    V.    DOW.  603 

law.  Postponing  an  inquiry  in  regard  to  thi^  last  objection  until 
we  have  examined  the  other,  we  proceed  to  inquire  what  are  the 
privileges  and  immunities  of  a  citizen  of  the  United  States  which 
no  State  can  abridge  ?  Do  they  include  the  right  to  be  exempt 
from  trial,  for  an  infamous  crime,  in  a  state  court,  and  under  state 
authority  except  upon  presentment  by  a  grand  jury  ?  And  do 
they  also  include  the  right  in  all  criminal  prosecutions  in  a  state 
court  to  be  tried  by  a  jury  composed  of  twelve  jurors  ?  .  .  . 

It  would  seem  to  })e  quite  plain  that  the  provision  in  the  Utah 
constitution  for  a  jury  of  eight  jurors  in  all  state  criminal  trials,  for 
other  than  capital  offenses,  violates  the  Sixth  Amendment,  pro- 
vided that  amendment  is  now  to  be  construed  as  applicable  to 
criminal  prosecutions  of  citizeiLs  of  the  United  States  in  state 
courts. 

It  is  conceded  that  there  are  certain  privileges  or  immunities 
possessed  by  a  citizen  of  the  United  States,  because  of  his  citizen- 
ship, and  that  they  cannot  be  abridged  by  any  action  of  the  States. 
In  order  to  limit  the  powers  which  it  was  feared  might  be  claimed  or 
exercised  by  the  federal  g(n-ernment,  under  the  provisions  of  the 
Constitution  as  it  was  when  adopted,  the  first  ten  amendments 
to  that  instrument  were  proposed  to  the  legislatures  of  the  several 
jBtates  by  the  first  Congress  on  the  25th  of  September,  1789.  They 
were  intended  as  restraints  and  limitations  upon  the  powers  of  the 
general  government,  and  were  not  intended  to  and  did  not  have 
any  effect  upon  the  powers  of  the  respective  States.  This  has  been 
many  times  decided.  .  .  . 

It  is  claimed,  however,  that  since  the  adoption  of  the  Fourteenth 
Amenchnent  the  effect  of  the  former  amendments  has  been  thereby 
changed  and  greatly  enlarged.  It  is  now  urged  in  substance  that 
all  the  provisions  contained  in  the  first  ten  amendments,  so  far  as 
they  secure  and  recognize  the  fundamental  rights  of  the  individual 
as  against  the  exercise  of  federal  power,  are  by  virtue  of  this 
amendment  to  be  regarded  as  privileges  or  immunities  of  a  citizen 
of  the  United  States,  and,  therefore,  the  States  cannot  provide  for 
any  procedure  in  state  courts  which  could  not  be  followed  in  a 
federal  court  because  of  the  limitations  contained  in  those  amend- 
ments. This  was  also  the  contention  made  upon  the  argument  in 
the  Spies  case,  123  U.  S.  131,  151;  but  in  the  opinion  of  the  court 
therein,  which  was  delivered  by  Mr.  Chief  Justice  Waite,  the  ques- 
tion was  not  decided  because  it  was  held  that  the  case  did  not 
require  its  decision. 


604  PROCEDURE.  « 

In  the  Slaughter-House  Cases,  16  Wall.  36,  the  subject  of  the 
privileges  or  immunities  of  citizens  of  the  United  States,  as  dis- 
tinguished from  those  of  a  particular  State,  was  treated  by  Mr. 
Justice  Miller  in  delivering  the  opinion  of  the  court.  .  .  . 

Although  his  suggestion  that  only  discrimination  by  a  State 
against  the  negroes  as  a  class  or  on  account  of  their  race  was 
covered  by  the  amendment  as  to  the  equal  protection  of  the  laws, 
has  not  been  affirmed  by  the  later  cases,  yet  it  was  but  the  expres- 
sion of  his  belief  as  to  what  would  be  the  decision  of  the  court 
when  a  case  came  before  it  involving  that  point.  The  opinion 
upon  the  matters  actually  involved  and  maintained  by  the  judg- 
ment in  the  case  has  never  been  doubted  or  overruled  by  any 
judgment  of  this  court.  It  remains  one  of  the  leading  cases  upon 
the  subject  of  that  portion  of  the  Fourteenth  Amenchncnt  of  which 
it  treats.  .  .  . 

In  speaking  of  the  meaning  of  the  phrase  "  privileges  and  im- 
munities of  citizens  of  the  several  States,"  under  section  second, 
article  fourth,  of  the  Constitution,  it  was  said  l)y  the  present  Chief 
Justice,  in  Cole  v.  Cunningham,  133  U.  S.  107,  that  the  intention 
was  "  to  confer  on  the  citizens  of  the  several  States  a  general  citi- 
zenship, and  to  communicate  all  the  privileges  and  immunities 
which  the  citizens  of  the  same  State  would  be  entitled  to  under 
the  like  circumstances,  and  this  includes  the  right  to  institute 
actions." 

And  in  Blake  v.  McClung,  172  U.  S.  239,  248,  various  cases  are 
cited  regarding  the  meaning  of  the  words  "  ]irivilegcs  and  immuni- 
ties," under  the  fourth  article  of  the  Constitution,  in  not  one  of 
which  is  there  any  mention  made  of  the  right  claimed  in  this  case, 
as  one  of  the  privileges  or  immunities  of  citizens  in  the  several 
States. 

These  cases  show  the  meaning  which  the  courts  have  attached  to 
the  expression,  as  used  in  the  fourth  article  of  the  Constitution,  and 
the  argument  is  not  labored  which  gives  the  same  meaning  to  it 
when  used  in  the  Fourteenth  Amendment.  .  .  . 

In  Walker  v.  Sauvinet,  92  U.  S.  90,  it  was  held  that  a  trial  by 
jury  in  suits  at  common  law  in  the  state  courts  was  not  a  privilege 
or  immunity  belonging  to  a  person  as  a  citizen  of  the  United  States, 
and  protected,  therefore,  by  the  Fourteenth  Amendment.  .  .  . 

This  case  shows  that  the  Fourteenth  Amendment  in  forbidding  a 
State  to  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  does  not  include  among  them  the  right  of  trial  by 
jury  in  a  civil  case,  in  a  state  court,  although  the  right  to  such  a 


MAXWELL   V.    DOW.  605 

trial  in  the  federal  courts  is  specially  secured  to  all  persons  in  the 
cases  mentioned  in  the  Seventh  Amendment. 

Is  any  one  of  the  rights  secured  to  the  incU\idual  by  the  Fifth  or 
by  the  SLxth  Amendment  any  more  a  privilege  or  immunity  of  a 
citizen  of  the  United  States  than  are  those  secured  by  the  Seventh  ? 
In  none  are  they  privileges  or  immunities  granted  and  belonging 
to  the  incUvidual  as  a  citizen  of  the  United  States,  but  they  are 
secured  to  all  persons  as  against  the  federal  government,  entirely 
irrespective  of  such  citizenship.  As  the  individual  does  not  enjoy 
them  as  a  pri\alege  of  citizenship  of  the  United  States,  therefore, 
when  the  Fourteenth  Amendment  prohibits  the  abridgment  by  the 
Stq,tes  of  those  privileges  or  immunities  which  he  enjoj^s  as  such 
citizen,  it  is  not  correct  or  reasonable  to  say  that  it  covers  and 
extends  to  certain  rights  which  he  does  not  enjoj'  by  reason  of  his 
citizenship,  but  simply  because  those  rights  exist  in  favor  of  all 
individuals  as  against  federal  governmental  powers.  The  nature 
or  character  of  the  right  of  trial  l)y  jury  is  the  same  in  a  criminal 
prosecution  as  in  a  civil  action,  and  in  neither  case  does  it  spring 
from  nor  is  it  founded  upon  the  citizenship  of  the  individual  as  a 
citizen  of  the  United  States,  and  if  not,  then  it  cannot  be  said  that 
in  either  case  it  is  a  pri\'ilege  or  immunity  which  alone  belongs  to 
him  as  such  citizen.  ... 

In  this  case  the  privilege  or  immunity  claimed  does  not  rest 
upon  the  individual  by  virtue  of  his  national  citizenship,  and  hence 
is  not  protected  by  a  clause  which  simply  prohibits  the  abridgment 
of  the  privileges  or  immunities  of  citizens  of  the  United  States. 
Those  are  not  distinctly  privileges  or  inununities  of  such  citizen- 
ship, where  every  one  has  the  same  as  against  the  federal  govern- 
ment, whether  citizen  or  not. 

The  Fourteenth  Amendment,  it  must  be  remembered,  did  not 
add  to  those  privileges  or  immunities.  The  Sauvinet  case  is  an 
authority  in  favor  of  the  contention  that  the  amendm.ent  does  not 
preclude  the  States  by  their  constitutions  and  laws  from  altering 
the  rule  as  to  incUctment  by  a  grand  jury,  or  as  to  the  number  of 
jurors  necessary  to  compose  a  petit  jury^  in  a  criminal  case  not 
capital. 

The  same  reasoning  is  applicable  to  the  case  of  Kennard  v. 
Louisiana,  92  U.  S.  480,  although  that  case  was  decided  with 
special  reference  to  the  "  due  process  of  law  "  clause. 

In  Kemmler's  case,  136  U.  S.  436,  it  was  stated  that  it  was  not 
contended  and  could  not  be  that  the  Eighth  Amenchnent  to  the 
federal  Constitution  was  intended  to  apply  to  the  States.  .  .  . 


GOG  PROCRDIRE. 

In  Pressor  v.  Illinois,  IIG  I'.  S.  252,  it  was  held  that  the  Second 
Amendment  to  the  Constitution,  in  regard  to  the  right  of  the 
people  to  bear  arms,  is  a  limitation  only  on  the  power  of  Congress 
and  the  National  Government,  and  not  of  the  States.  .  .  . 

In  O'Neil  v.  Vermont,  144  U.  S.  323,  332,  it  was  stated  that  as  a 
general  question  it  has  always  been  ruled  that  the  Eighth  Amend- 
ment to  the  Constitution  of  the  United  States  docs  not  apply  to  the 
States. 

In  Thorington  v.  Montgomery,  147  U.  S.  490,  it  was  said  that 
the  Fifth  Amendment  to  the  Constitution  oiierates  exclusively  in 
restraint  of  federal  power,  and  has  no  application  to  the  States. 

We  have  cited  these  cases  for  the  purpose  of  showing  that  the 
privileges  and  immunities  of  citizens  of  the  United  States  do  not 
necessarily  include  all  the  rights  protected  by  the  first  eight 
amendments  to  the  federal  Constitution  against  the  powers  of 
the  federal  government.  They  were  decided  subsequently  to 
the  adoption  of  the  Fourteenth  Amendment,  and  if  the  particular 
clause  of  that  amendment,  now  under  consideration,  had  the  effect 
claimed  for  it  in  this  case,  it  is  not  too  much  to  say  that  it  would 
have  been  asserted  and  the  principles  api)lied  in  some  of  them. 

It  has  been  held  that  the  last  clause  of  the  Seventh  Amend- 
ment, which  provides  that  no  fact  tried  by  a  jury  shall  be  other- 
wise reexamined  in  any  court  of  the  United  States,  than  according 
to  the  rules  of  the  common  law,  is  not  confined  to  trials  by  jury  in 
federal  courts,  but  applies  equally  to  a  cause  tried  before  a  jury 
in  a  state  court  and  brought  thence  before  a  federal  court.  The 
Justices?;.  Murray,  9  Wall.  274;  Chicago,  Burlington  etc.  Railroad 
V.  Chicago,  166  U.  S.  226;  Capital  Traction  Company  v.  Hof,  174 
U.  S.  1.  But  these  decisions  only  carry  out  the  idea  that  the 
amendment  is  a  restraint  upon  federal  power,  and  not  upon  the 
power  of  the  State,  inasmuch  as  they  declare  that  the  clause 
restricts  the  right  of  the  federal  courts  to  reexamine  the  facts 
found  by  a  jury  in  a  state  court,  as  well  as  in  a  federal  one.  .  .  . 

The  rights  claimed  by  the  plaintiff  in  error  rest  with  the  state 
governments,  and  are  not  protected  by  the  particular  clause  of  the 
amendment  under  discussion.  AVhat  protection  may  be  afforded 
the  individual  against  state  legislation  or  the  procedure  in  state 
courts  or  tribunals  under  other  clauses  of  the  amendment,  we  do 
not  now  inquire,  as  Avhat  has  been  heretofore  said  is  restricted  to 
the  particular  clause  of  that  amendment  which  is  now  spoken  of, 
the  privileges  or  immunities  of  citizens  of  the  United  States. 


MAXWELL    V.   DOW.  607 

Counsel  for  plaintiff  in  error  has  cited  from  the  speech  of  one  of 
the  Senators  of  the  United  States,  made  in  the  Senate  when  the 
proposed  Fourteenth  Amendment  was  under  consideration  b}^  that 
Ijody,  wherein  he  stated  tliat  among  the  privileges  and  immunities 
which  the  committee  having  the  amendment  in  charge  sought  to 
protect  against  invasion  or  al^ridgment  by  the  States,  were  in- 
cluded those  set  forth  in  the  first  eight  amendments  to  the  Con- 
stitution, and  counsel  has  argued  that  this  court  should,  therefore, 
give  that  construction  to  the  amendment  which  was  contended  for 
by  the  Senator  in  his  speech. 

What  speeches  were  made  by  other  Senators,  and  by  Represen- 
tatives in  the  House,  upon  this  subject  is  not  stated  by  counsel, 
nor  does  he  state  what  construction  was  given  to  it,  if  anj',  by  other 
members  of  Congress.  It  is  clear  that  what  is  said  in  Congress 
upon  such  an  occasion  may  or  may  not  ex])rcss  the  views  of  the 
majority  of  those  who  favor  the  adojjtion  of  the  measure  which 
may  be  before  that  iiody,  and  the  question  whether  the  proposed 
amendment  itself  ex])resses  the  meaning  which  those  who  spoke 
in  its  favor  maj'  have  assumed  that  it  did,  is  one  to  be  determined 
by  the  language  actually  therein  used  and  not  by  the  speeches 
made  regarding  it. 

What  individual  Senators  or  Representatives  may  have  urged  in 
debate,  in  regard  to  the  meaning  to  be  given  to  a  proposed  con- 
stitutional amendment,  or  bill  or  resolution,  does  not  furnish  a 
firm  ground  for  its  proper  construction,  nor  is  it  important  as 
ex])lanatory  of  the  grounds  upon  which  the  members  voted  in 
adopting  it.  United  States  v.  Trans-Missouri  Freight  Association, 
160  U.  S.  290,  318;  Dunlap  /•.  United  States,  173  U.  S.  65,  75. 

In  the  case  of  a  constitutional  amendment  it  is  of  less  mate- 
riality than  in  that  of  an  ordinary  bill  or  resolution.  A  con- 
stitutional amendment  must  be  agreed  to,  not  only  by  Senators  and 
Representatives,  but  it  must  be  ratified  by  the  legislatures,  or  bj- 
conventions,  in  three  fourths  of  the  States  before  such  amend- 
ment can  take  effect.  The  safe  way  is  to  read  its  language  in 
connection  with  the  known  condition  of  affairs  out  of  which  the 
occasion  for  its  adoption  may  have  arisen,  and  then  to  construe  it, 
if  there  be  therein  any  doubtful  expressions,  in  a  way  so  far  as  is 
reasonably  possible,  to  forward  the  known  purpose  or  object  for 
which  the  amenchnent  was  adopted.  This  rule  could  not,  of  course, 
be  so  used  as  to  limit  the  force  and  effect  of  an  amendment  in  a 
manner  which  the  plain  and  unambiguous  language  used  therein 
would  not  justify  or  permit. 


g03  PROCEDURE. 

For  the  reasons  stated,  we  come  to  the  conclusion  that  the  clause 
under  consideration  does  not  affect  the  validity  of  the  Utah  con- 
stitution and  legislation. 

The  remaining  question  is,  whether  in  denying  the  right  of  an 
individual,  in  all  criminal  cases  not  capital,  to  have  a  jury  com- 
posed of  twelve  jurors,  the  State  deprives  him  of  life,  liberty  or 
property,  without  due  process  of  law. 

This  question  is,  as  we  believe,  substantially  answered  by  the 
reasoning  of  the  opinion  in  the  Hurtado  case,  supra.  .  .  . 

Judged  by  the  various  cases  in  this  court  we  think  there  is  no 
error  in  this  record,  and  the  judgment  of  the  Supreme  Court  of 
Utah  must,  therefore,  be  A  finned. 

Harlan,  J.,  dissenting.  .  .  . 


TWINING   V.   NEW  JERSEY. 
Supreme  Court  of  the  United  States.     1908. 

[211  United  Slates,  78.1  > 

Error  to  the  Court  of  Errors  and  Ap])eals  of  New  Jersey. 

Twining  and  another  were  indicted  in  a  New  Jersey  court  of  the 
statutory  misdemeanor  (N.  J.  P.  L.  1899,  450,  461)  of  exhibiting  a 
false  paper  to  a  bank  examiner  with  intent  to  deceive  him  as  to  the 
condition  of  a  trust  company  of  which  they  were  directors.  At 
the  trial  the  defendants  did  not  testify;  and  the  presiding  judge 
said  in  his  charge  to  the  jury:  "  The  fact  that  they  stay  off  the 
stand,  having  heard  testimony  which  might  be  prejudicial  to 
them,  without  availing  themselves  of  the  right  to  go  upon  the 
stand  and  contradict  it,  is  sometimes  a  matter  of  consequence.  .  .  . 
In  this  action,  I  do  not  see  how  that  can  have  much  weight.  ...  I 
leave  that  entirely  to  you."  The  defendants  were  found  guilty, 
and  judgment  on  the  verdict  was  affirmed  successively  by  the  New 
Jersey  Supreme  Court  and  the  Court  of  Errors  and  Appeals,  the 
propriety  of  the  charge,  in  view  of  the  Fourteenth  Amencknent, 
having  been  saved  as  a  question  for  each  of  the  courts. 

J.  G.  Johnson  and  others,  for  plaintiffs  in  error;  and  R.  H. 
McCarter,  Attorney  General  of  New  Jersey,  and  others,  contra. 

1  The  statement  has  not  been  reprinted.  —  Ed. 


TWINING   V.    NEW   JERSEY.  609 

Moody,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

In  the  view  we  take  of  the  case  we  do  not  deem  it  necessary  to 
consider  whether,  with  respect  to  the  federal  question,  there  is  any 
difference  in  the  situation  of  the  two  defendants.  It  is  assumed, 
in  respect  of  each,  that  the- jury  were  instructed  that  they  might 
draw  an  unfavorable  inference  against  him  from  his  failure  to 
testify,  where  it  was  within  his  power,  in  denial  of  the  evidence 
which  tended  to  incriminate  him.  The  law  of  the  State,  as  de- 
clared in  the  case  at  bar,  which  accords  with  other  decisions 
(Parker  v.  State,  61  N.  J.  L.  308;  State  v.  Wines,  65  N.  J.  L.  31; 
State  V.  Zdanowicz,  69  N.  J.  L.  619;  State  v.  Banuski,  64  Atl. 
Rep.  994),  permitted  such  an  inference  to  be  drawn.  The  judicial 
act  of  the  highest  court  of  the  State,  in  authoritatively  construing 
and  enforcing  its  laws,  is  the  act  of  the  State.  Ex  parte  Virginia, 
100  U.  S.  339;  Scott  v.  McNeal,  154  U.  S.  34;  Chicago,  Burlington 
&  Quincy  Railroad  Company  v.  Chicago,  166  U.  S.  226.  The 
general  question,  therefore,  is,  whether  such  a  law  violates  the 
Fourteenth  Amendment,  either  by  abridging  the  privileges  or 
immunities  of  citizens  of  tiie  United  States,  or  by  depriving  persons 
of  their  life,  liberty  or  proix'rty  without  due  process  of  law.  .  .  . 

The  exemption  from  testimonial  compulsion,  that  is,  from  dis- 
closure as  a  witness  of  evidence  against  oneself,  forced  by  any 
form  of  legal  process,  is  universal  in  American  law,  though  there 
may  be  differences  as  to  its  exact  scope  and  limits.  At  the  time 
of  the  formation  of  the  Union  the  principle  that  no  person  could  be 
compelled  to  be  a  witness  against  himself  had  become  embodied 
in  the  common  law^  and  distinguished  it  from  all  other  systems  of 
jurisprudence.  It  was  generally  regarded  then,  as  now%  as  a  priv- 
ilege of  great  value,  a  protection  to  the  innocent  though  a  shelter 
to  the  guilty,  and  a  safeguard  against  heedless,  unfounded  or 
tyrannical  prosecutions.  Five  of  the  original  thirteen  States 
(North  Carolina,  1776;  Pennsylvania,  1776;  Virginia,  1776; 
Massachusetts,  1780;  New  Hampshire,  1784)  had  then  guarded 
the  principle  from  legislative  or  judicial  change  by  including  it  in 
constitutions  or  bills  of  rights;  IMaryland  had  provided  in  her 
constitution  (1776)  that  "  no  man  ought  to  be  compelled  to  give 
evidence  against  himself,  in  a  common  court  of  law,  or  in  any  other 
court,  but  in  such  cases  as  have  been  usually  practised  in  this  State 
or  may  hereafter  be  directed  by  the  legislature  ";  and  in  the  re- 
mainder of  those  States  there  seems  to  be  no  doubt  that  it  was 
recognized  by  the  courts.  The  privilege  was  not  included  in  the 
federal  Constitution  as  originally  adopted,  but  was  placed  in  one 


QIQ  PROCEDURE. 

of  the  ten  Amendments  which  were  recommended  to  the  States  by 
the  first  Congress,  and  by  thorn  adopted.      Since  then  all  the 
States  of  the  Union  have,  from  time  to  time,  with  varying  form 
but  uniform  meaning,  included  the  privilege  in  their  constitutions, 
except  the  States  of  New  Jersey  and  Iowa,  and  in  those  States  it 
is  held  to  be  part  of  the  existing  law.     State  v.  Zdanowicz,  supra; 
State  V.  Height,  117  Iowa,  G50.      It  is  obvious  from  this  short 
statement  that  it  has  been  suj^iiosed  by  \\\o  States  that,  so  far  as 
the  state  courts  are  concerned,  the  privilege  had  its  origin  in  the 
constitutions  and  law  of  the  States,  and  that  persons  appealing  to 
it  must  look  to  the  State  for  their  protection.     Indeed,  since  by  the 
unvarying  decisions  of  this  court  the  first  ten  Amendments  of  the 
federal  Constitution  are  restrictive  only  of  National  action,  there 
was  nowhere  else  to  look  up  to  the  time  of  the  adoption  of  the 
Fourteenth  Amendment,  and  the  State,  at  least  until  then,  might 
give,  modify  or  withhold  the  privilege  at  its  \v\\\.  .  .  .      The 
defendants  contend,  in  the  first  place,  that  the  exemjition  from  self- 
incrimination  is  one  of  the  privileges  and  immunities  of  citizens 
of  the  United  States  which  the  Fourteenth  Amendment  forbids  the 
States  to  abridge.      It  is  not  argued  that  the  defendants  are  pro- 
tected by  that  part  of  the  Fifth  Amendment  which  provides  that 
"  no  person  .  .  .  shall  be  compelled  in  any  criminal  ca.se  to  be  a 
witness  against  himself,"  for  it  is  recognized  by  counsel  that  by  a 
long  line  of  decisions  the  first  ten  Amen(bnents  are  not  operative 
on  the  States.     Barron  i'.  Baltimore,  7  Pet.  243;  Spies  v.  Illinois, 
123  U.  S.  131;   Brown  v.  New  Jersey,  175  U.  S.  172;   Barrington 
V.  Missouri,  205  U.  S.  483.      But  it  is  argued  that  this  privilege 
is  one  of  the  fundamental  rights  of  national   citizenship,  placed 
under  national   protection  by  the  Fourteenth  Amendment,  and 
it  is  specifically  argued  that  the  "  privileges  and  immunities  of 
citizens  of  the  United  States,"  protected  against  state  action  by 
that    Amendment,    include    those    fundamental    personal    rights 
which  were  protected  against  national  action  by  the  first  eight 
Amendments;    that  this  was  the  intention  of  the  framers  of  the 
Fourteenth  Amendment,  and  that  this  part  of  it  would  otherwise 
have  little  or  no  meaning  and  effect.      These  arguments  are  not 
newto  this  court  and  the  answer  to  them  is  found  in  its  decisions. . .  • 
If  then  it  be  assumed,  without  deciding  the  point,  that  an 
exemption  from  compulsory  self-incrimination  is  what  is  described 
as  a  fundamental  right  belonging  to  all  w^ho  live  under  a  free 
government,  and  incapable  of  impairment  by  legislation  or  judicial 
decision,  it  is,  so  far  as  the  States  are  concerned,  a  fundamental 


TWINING    V.   NEW   JERSEY.  Gil 

right  inherent  in  state  citizenship,  and  is  a  privilege  or  immunity 
of  that  citizenship  only.  Privileges  and  immunities  of  citizens  of 
the  United  States,  on  the  other  hand,  are  only  such  as  arise  out  of 
the  nature  and  essential  character  of  the  national  government,  or 
are  specifically  granted  or  secured  to  all  citizens  or  persons  by  the 
Constitution  of  the  United  States.  Slaughter-House  Cases,  16 
Wall.  36,  79;  In  re  Kemmler,  136  U.  S.  436,  448;  Duncan  v. 
Missouri,  152  U.  S.  377,  382. 

Thus  among  the  rights  and  privileges  of  national  citizenship 
recognized  by  this  court  are  the  right  to  pass  freely  from  State  to 
State,  Crandall  v.  Nevada,  6  Wall.  35;  the  right  to  petition  Con- 
gress for  a  redress  of  grievances,  United  States  v.  Cruikshank,  92 
U.  S.  542;  the  right  to  vote  for  national  officers,  £'x  parte  Yarbrough, 
110  U.  S.  651 ;  Wiley  v.  Sinklcr,  179  U.  S.  58;  the  right  to  enter  the 
public  lands,  United  States  v.  Waddell,  112  U.  S.  76;  the  right  to 
be  protected  against  violence  while  in  the  lawful  custody  of  a 
United  States  marshal,  Logan  v.  United  States,  144  U.  S.  263; 
and  the  right  to  inform  the  United  States  authorities  of  violation 
of  its  laws,  In  re  Quarles,  158  U.  S.  532.  .  .  .  The  exemption  from 
compulsor}'  self-incrimination  is  not  a  privilege  or  immunity  of 
national  citizenship  guaranteed  by  this  clause  of  the  Fourteenth 
Amendment  against  abridgment  by  the  States. 

The  defendants,  however,  do  not  stop  here.  They  appeal  to 
another  clause  of  the  Fourteenth  Amendment,  and  insist  that  the 
self-incrimination,  which  they  allege  the  instruction  to  the  jury 
compelled,  was  a  denial  of  due  process  of  law.  This  contention 
requires  separate  consideration,  for  it  is  possible  that  some  of  the 
personal  rights  safeguarded  by  the  first  eight  Amendments  against 
national  action  may  also  be  safeguarded  against  state  action, 
because  a  denial  of  them  would  be  a  denial  of  due  process  of  law. 
Chicago,  Burhngton  &  Quincy  Railroad  v.  Chicago,  166  U.  S.  226. 
If  this  is  so,  it  is  not  because  those  rights  are  enumerated  in  the 
first  eight  Amendments,  but  because  they  are  of  such  a  nature  that 
they  are  included  in  the  conception  of  due  process  of  law.  .  .  . 

Nothing  is  more  certain,  in  point  of  historical  fact,  than  that 
the  practice  of  compulsory  self-incrimination  in  the  courts  and 
elsewhere  existed  for  four  hundred  years  after  the  granting  of 
Magna  Carta,  continued  throughout  the  reign  of  Charles  I  (though 
then  beginning  to  be  seriously  questioned),  gained  at  least  some 
foothold  among  the  early  colonists  of  this  country,  and  was  not 
entirely  omitted  at  trials  in  England  until  the  eighteenth  centurj\ 
Wigmore  on  Evidence,  §  2250  (see  for  the  Colonies,  note  108) ; 


Q\2  PROCEDURE. 

Hallam's  Constitutional  History  of  England,  ch.  VIII,  2  WidcUe- 
ton's  American  ed.  37  (describing  the  criminal  jurisdiction  of  the 
Court  of  Star  Chamber);  Bentham's  Rationale  of  Judicial  Evi- 
dence, book  IX,  ch.  Ill,  §  IV.  .  .  . 

We  think  it  is  manifest,  from  this  review  of  the  origin,  growth, 
extent  and  limits  of  the  exemption  from  compulsory  self-incrim- 
ination in  the  English  law,  that  it  is  not  regarded  as  a  part  of  the 
law  of  the  land  of-  Magna  Carta  or  the  due  process  of  law,  which 
has  been  deemed  an  equivalent  expression,  but,  on  the  contrary,  is 
regarded  as  separate  from  and  independent  of  due  process.  It 
came  into  existence  not  as  an  essential  part  of  due  process,  but  as  a 
wise  and  beneficent  rule  of  evidence  developed  in  the  course  of 
judicial  decision.  This  is  a  potent  argument  when  it  is  remem- 
bered that  the  phrase  was  borrowed  from  English  law  and  that  to 
that  law  we  must  look  at  least  for  its  primary  meaning.  .  .  . 

We  prefer  to  rest  our  decision  on  broader  grounds,  and  inquire 
whether  the  exemption  from  self-incrimination  is  of  such  a  nature 
that  it  must  be  included  in  the  conception  of  due  process.  Is  it  a 
fundamental  principle  of  liberty  and  justice  which  inheres  in  the 
very  idea  of  free  government  and  is  the  inalienable  right  of  a  citizen 
of  such  a  government  ?  If  it  is,  and  if  it  is  of  a  nature  that  pertains 
to  process  of  law,  this  court  has  declared  it  to  be  essential  to  due 
process  of  law.  In  approaching  such  a  question  it  must  not  be 
forgotten  that  in  a  free  representative  government  nothing  is  more 
fundamental  than  the  right  of  the  people  through  their  appointed 
servants  to  govern  themselves  in  accordance  with  their  own  will, 
except  so  far  as  they  have  restrained  themselves  by  constitutional 
limits  specifically  established,  and  that  in  our  peculiar  dual  form 
of  government  nothing  is  more  fundamental  than  the  full  power 
of  the  State  to  order  its  own  affairs  and  govern  its  own  people, 
except  so  far  as  the  federal  Constitution  expressly  or  by  fair 
implication  has  withdrawn  that  power.  The  power  of  the  people 
of  the  States  to  make  and  alter  their  laws  at  pleasure  is  the  greatest 
security  for  liberty  and  justice,  this  court  has  said  in  Hurtado  v. 
California,  110  U.S.  516.  We  are  not  invested  with  the  jurisdiction 
to  pass  upon  the  expediency,  msdom  or  justice  of  the  laws  of  the 
States  as  declared  by  their  courts,  but  only  to  determine  their 
conformity  with  the  federal  Constitution  and  the  paramount 
laws  enacted  pursuant  to  it.  Under  the  guise  of  interpreting  the 
Constitution  we  must  take  care  that  w^e  do  not  import  into  the 
discussion  our  own  personal  views  of  what  would  be  wise,  just  and 
fitting  rules  of  government  to  be  adopted  by  a  free  people  and 


TWINING    V.    NEW   JERSEY.  6l3 

confound  them  wath  constitutional  limitations.  The  question 
before  us  is  the  meaning  of  a  constitutional  provision  which  forbids 
the  States  to  deny  to  any  person  due  process  of  law.  In  the  de- 
cision of  this  question  we  have  the  authority  to  take  into  account 
only  those  fundamental  rights  which  are  expressed  in  that  provi- 
sion, not  the  rights  fundamental  in  citizenship,  state  or  national, 
for  they  are  secured  otherwise,  but  the  rights  fundamental  in  due 
process,  and  therefore  an  essential  part  of  it.  We  have  to  consider 
whether  the  right  is  so  fundamental  in  due  process  that  a  refusal 
of  the  right  is  a  denial  of  due  process.  One  aid  to  the  solution  of 
the  question  is  to  inquire  how  the  right  was  rated  during  the  time 
when  the  meaning  of  due  process  was  in  a  formative  state  and 
before  it  was  incorporated  in  American  constitutional  law.  Did 
those  who  then  were  formulating  and  insisting  upon  the  rights  of 
the  people  entertain  the  view  that  the  right  was  so  fundamental 
that  there  could  be  no  due  process  without  it  ?  It  has  already 
appeared  that,  prior  to  the  formation  of  the  American  Constitu- 
tions, in  which  the  exemption  from  compulsory  self-incrimination 
was  specifically  secured,  separately,  independently,  and  side  by 
side  with  the  requirement  of  due  process,  the  doctrine  was  formed, 
as  other  doctrines  of  the  law  of  evidence  have  been  formed,  by  the 
course  of  decision  in  the  courts  covering  a  long  period  of  time. 
Searching  further,  we  find  nothing  to  show  that  it  was  then  thought 
to  be  other  than  a  just  and  useful  principle  of  law.  None  of  the 
great  instruments  in  which  we  are  accustomed  to  look  for  the  decla- 
ration of  the  fundamental  rights  made  reference  to  it.  The 
privilege  was  not  dreamed  of  for  hundreds  of  years  after  Magna 
Carta  (1215),  and  could  not  have  been  implied  in  the  "  law  of  the 
land  "  there  secured.  The  Petition  of  Right  (1629),  though  it 
insists  upon  the  right  secured  by  Magna  Carta  to  be  condemned 
only  by  the  law  of  the  land,  and  sets  forth  by  way  of  grievance 
divers  \^olations  of  it,  is  silent  upon  the  practice  of  compulsory 
self-incrimination,  though  it  was  then  a  matter  of  common  occur- 
rence in  all  the  courts  of  the  realm.  The  Bill  of  Rights  of  the  first 
year  of  the  reign  of  William  and  !Mary  (1689)  is  likewise  silent, 
though  the  practice  of  questioning  the  prisoner  at  his  trial  had  not 
then  ceased.  .  .  . 

We  pass  by  the  meager  records  of  the  early  colonial  time,  so  far 
as  they  have  come  to  our  attention,  as  affording  light  too  uncertain 
for  guidance.  See  Wigmore,  §  2250,  note  108;  2  Hening's  St.  at 
Large,  442  (Va.,  1677);  1  Winthrop's  History  of  New  England, 
47;  Provincial  Act,  4  W.  &  M.  Ancient  Charters,  Massachusetts, 


Ql^  PROCEDURE. 

214.  Though  it  is  worthy  of  note  that  neither  the  declaration  of 
rights  of  the  Stamp  Act  Congress  (17G5)  nor  the  declaration  of 
rights  of  the  Continental  Congress  (1774)  nor  the  ordinance  for 
the  government  of  the  Northwestern  Territory  included  the  priv- 
ilege in  their  enumeration  of  fundamental  rights. 

But  the  history  of  the  incorporation  of  the  ])rivilege  in  an 
amendment  to  the  national  Coastitution  is  full  of  significance  in 
this  connection.  .  .  . 

Four  only  of  the  thirteen  original  States  insisted  upon  incor- 
porating the  privilege  in  the  Constitution,  and  they  separately  and 
simultaneously  with  the  requirement  of  due  process  of  law,  and 
.  .  .  three  States  proposing  amendments  were  silent  upon  this 
subject.  It  is  worthy  of  note  that  two  of  these  four  States  did  not 
incorporate  the  privilege  in  their  own  constitutions,  where  it 
would  have  had  a  much  ^^'ider  field  of  usefulness,  until  many  years 
after.  New  York  in  1821  and  Rhode  Island  in  1842  (its  first 
constitution).  This  survey  does  not  tend  to  show  that  it  was  then 
in  this  country  the  universal  or  even  general  belief  that  the  privilege 
ranked  among  the  fundamental  and  inalienable  rights  of  man- 
kind; and  what  is  more  important  here,  it  affirmatively  shows 
that  the  privilege  was  not  conceived  to  be  inherent  in  due  process 
of  law,  but  on  the  other  hand  a  right  separate,  indejjendent  and 
outside  of  due  process.  Congress,  in  submitting  the  amendments 
to  the  several  States,  treated  the  two  rights  as  exclusive  of  each 
other.  Such  also  has  been  the  view  of  the  States  in  framing  their 
own  constitutions,  for  in  every  case,  except  in  New  Jersey  and 
Iowa,  where  the  due  process  clause  or  its  equivalent  is  included,  it 
has  been  thought  necessary  to  include  separately  the  privilege 
clause.  Nor  have  we  been  referred  to  any  decision  of  a  state  court 
save  one  (State  v.  Height,  117  Iowa,  650),  where  the  exemption  has 
been  held  to  be  required  by  due  process  of  law.  The  inference  is 
irresistible  that  it  has  been  the  opinion  of  constitution  makers 
that  the  privilege,  if  fundamental  in  any  sense,  is  not  fundamental 
in  due  process  of  law,  nor  an  essential  part  of  it.  .  .  . 

The  decisions  of  this  court,  though  they  are  silent  on  the  precise 
question  before  us,  ought  to  be  searched  to  discover  if  they  present 
any  analogies  which  are  helpful  in  its  decision.  The  essential 
elements  of  due  process  of  law,  already  established  by  them,  are 
singularly  few,  though  of  wide  application  and  deep  significance. 
We  are  not  here  concerned  with  the  effect  of  due  process  in  restrain- 
ing substantive  laws,  as,  for  example,  that  which  forbids  the  taking 
of  private  property  for  public  use  \%dthout  compensation.      We 


rW'INING   V.   NEW   JERSEY.  615 

need  notice  now  only  those  cases  which  deal  with  the  principles 
which  must  be  observed  in  the  trial  of  criminal  and  civil  causes'. 
Due  process  requires  that  the  court  which  assumes  to  determine  the 
rights  of  parties  shall  have  jurisdiction,  Pennoyer  v.  Neff,  95  U.  S. 
714,  733;  Scott  v.  McNeal,  154  U.  S.  34;  Old  Wayne  Life  Associa- 
tion V.  McDonough,  204  U.  S.  8,  and  that  there  shall  be  notice  and 
opportunity  for  hearing  given  the  parties,  Hovey  v.  Elliott,  167 
U.  S.  409;  Roller  v.  Holly,  176  U.  S.  398;  and  see  Londoner  v. 
Denver,  210  U.  S.  373.  Subject  to  these  two  fundamental  con- 
ditions, which  seem  to  be  universally  prescribed  in  all  systems  of 
law  established  by  civilized  countries,  this  court  has  up  to  this 
time  sustained  all  state  laws,  statutory'  or  judicially  declared, 
regulating  procedure,  evidence  and  methods  of  trial,  and  held 
them  to  be  consistent  with  due  process  of  law.  Walker  v.  Sauvi- 
net,  92  U.  S.  90;  Re  Converse,  137  U.  S.  624;  Caldwell  v.  Texas, 
137  U.  S.  692;  Leeper  v.  Texas,  139  U.  S.  462;  Hallinger  i'.  Davis, 
146  U.  S.  314;  McXultyr.  California,  149  U.  S.  645;  :\IcKane  v. 
Durston,  153  U.  S.  684;  Iowa  Central  v.  Iowa,  160  U.  S.  389; 
Lowe  V.  Kansas,  163  U.  S.  81;  Allen  v.  Georgia,  166  U.  S.  138; 
Hodgson  V.  Vermont,  168  U.  S.  262;  Brown  v.  New  Jersey,  175 
U.  S.  172;  Bolln  v.  Nebraska,  176  U.  S.  83;  Maxwell  v.  Dow, 
176  U.  S.  581;  Simon  v.  Craft,  182  U.  S.  427;  West  v.  Louisi- 
ana, 194  U.  S.  258;  Marvin  v.  Trout,  199  U.  S.  212;  Rogers  v. 
Peck,  199  U.  S.  425;  Howard  v.  Kentucky,  200  U.  S.  164;  Rawlins 
V.  Georgia,  201  U.  S.  638;  Felts  v.  Murphy,  201  U.  S.  123.  .  .  . 

Even  if  the  historical  meaning  of  due  process  of  law  and  the 
decisions  of  this  court  did  not  exclude  the  privilege  from  it,  it 
would  be  going  far  to  rate  it  as  an  immutable  principle  of  justice 
which  is  the  inalienable  possession  of  every  citizen  of  a  free  govern- 
ment. Salutary  as  the  principle  may  seem  to  the  great  majority, 
it  cannot  be  ranked  with  the  right  to  hearing  before  condemnation, 
the  immunity  from  arbitrary  power  not  acting  by  general  laws,  and 
the  inviolability  of  private  property-.  The  wisdom  of  the  exemp- 
tion has  never  been  universally  assented  to  since  the  days  of  Ben- 
tham;  manj'  doubt  it  today,  and  it  is  best  defended  not  as  an 
unchangeable  principle  of  universal  justice  but  as  a  law  proved  b}- 
experience  to  be  expedient.  See  Wigmore,  §  2251.  It  has  no 
place  in  the  jurisprudence  of  civilized  and  free  countries  outside 
the  domain  of  the  common  law,  and  it  is  nowhere  observed  among 
our  own  people  in  the  search  for  truth  outside  the  administration 
of  the  law.  It  should,  must  and  will  be  rigidly  observed  where  it  i.s 
secured  by  specific  constitutional  safeguards,  but  there  is  nothing 


616  PROCEDURE. 

in  it  which  gives  it  a  sanctity  above  and  before  constitutions 
themselves.  .  .  . 

We  have  assumed  only  for  the  purpose  of  discussion  that  what 
was  done  in  the  case  at  bar  was  an  infringement  of  the  privilege 
against  self-incrimination.  .  .  .  The  authorities  upon  the  ques- 
tion are  in  conflict.  We  do  not  pass  upon  the  conflict,  because,  for 
the  reasons  given,  we  think  that  the  exemption  from  compulsory 
self-incrimination  in  the  courts  of  the  States  is  not  secured  by  any 
part  of  the  federal  Constitution. 

Judgment  affirmed. 

Harlan,  J.,  dissenting.  .  .  . 


UNITED    STATES    V.    CRUIK5H.VN"K.  617 

Section  III. 
The  Fourteenth  Amendment  and  Race  Discrimination. 

UNITED   STATES   v.   CRUIKSHAXK. 
Supreme  Court  of  the  United  States.     1876. 

[92  United  States,  542.]  i 
Error  to  the  Circuit  Court  of  the  United  States  for  the  District 

of  Louisiana. 

Williams,  Attorney  General  and  S.  F.  Phillips,  Solicitor  Gen- 
eral, for  plaintiff  in  error;  and  Reverdy  Johnson  and  others,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  here  \\-ith  a  certificate  by  the  judges  of  the  Cir- 
cuit Court  for  the  District  of  Louisiana  that  they  were  di\'ided  in 
opinion  upon  a  question  which  occurred  at  the  hearing.  It  pre- 
sents for  our  consideration  an  indictment  containing  sixteen 
counts  divided  into  two  series  of  eight  counts  each,  based  upon 
sect.  6  of  the  Enforcement  Act  of  May  31,  1870.  That  section  is  as 
follows :  — 

"  That  if  two  or  more  persons  shall  band  or  conspire  together,  or  go  in 
di^Kuise  upon  the  pubUc  highway,  or  upon  the  premises  of  another,  xvnth 
intent  to  ^^olate  anv  pro^nsion  of  this  act.  or  to  injure,  oppress,  threaten, 
or  intimidate  anv  citizen,  vsnth  intent  to  prevent  or  hinder  his  free  exercise 
and  enjoN-ment  of  any  right  or  pri^-ilege  granted  or  secured  to  hmi  by 
the  Constitution  or  laws  of  the  United  States,  or  because  of  his  havmg 
exercised  the  same,  such  persons  shaU  be  held  guilty  of  felony  and,  on 
con^^ction  thereof,  shall  be  fined  or  imprisoned,  or  both,  at  the  discretion 
of  the  court  -  the  fine  not  to  exceed  .S5.000.  and  the  imprisonment  not 
to  exceed  ten  vears;  and  shaU.  moreover,  be  thereafter  ineUgible  to.  and 
disabled  from  holding,  any  office  or  place  of  honor,  profit,  or  trust  created 
by  the  Constitution  or  laws  of  the  United  States."     16  Stat.  141. 

The  question  certified  arose  upon  a  motion  in  arrest  of  judgment 
after  a  verdict  of  guilty  generally  upon  the  whole  sixteen  counts, 
and  is  stated  to  be,  whether  "  the  said  sixteen  counts  of  said  mdict- 
ment  are  severallv  good  and  sufl&cient  in  law,  and  contain  charges 
of  criminal  matter  indictable  under  the  laws  of  the  United  States." 

The  general  charge  in  the  first  eight  counts  is  that  of  "  banding.  ' 
and  in  the  second  eight,  that  of  '^  conspiring  "  together  to  injure, 
oppress,  threaten,  and  intimidate  Le^-i  Nelson  and  Alexander  Till- 
man, citizens  of  the  United  States,  of  .\frican  descent  and  persons 

»  The  reporters  statement  has  not  been  reprinted.  —  Ed. 


(313  RACE    DISCRIMINATION. 

of  color,  with  the  intent  thereby  to  hinder  and  prevent  tliem  in 
their  free  exercise  and  enjoyment  of  rights  and  privileges  "granted 
and  secured  "  to  them  "  in  common  with  all  other  good  citizens 
of  the  United  States  by  the  Constitution  and  laws  of  the  United 
States." 

The  offenses  provided  for  by  the  statute  in  question  do  not  con- 
sist in  the  mere  "banding"  or  "conspiring"  of  two  or  more  persons 
together,  but  in  their  banding  or  conspiring  with  the  intent,  or  for 
any  of  the  purposes,  specified.  To  bring  this  case  under  the  opera- 
tion of  the  statute,  therefore,  it  must  ai)pear  that  the  right,  the 
enjoyment  of  which  the  conspirators  intended  to  hinder  or  prevent, 
was  one  granted  or  secured  by  the  Constitution  or  laws  of  the  United 
States.  If  it  does  not  so  appear,  the  criminal  matter  charged  has 
not  been  made  indictable  by  any  act  of  Congress.  .  .  . 

We  now  proceed  to  an  examination  of  the  indictment,  to  ascer- 
tain whether  the  several  rights,  which  it  is  alleged  the  defendants 
intended  to  interfere  with,  are  such  as  had  been  in  law  and  in  fact 
granted  or  secured  by  the  Constitution  or  laws  of  the  United 
States. 

The  first  and  ninth  counts  state  the  intent  of  the  defendants  to 
have  been  to  hinder  and  prevent  the  citizens  named  in  the  free 
exercise  and  enjojTnent  of  their  "  lawful  right  and  privilege  to 
peaceably  assemble  together  with  each  other  and  with  other  citizens 
of  the  United  States  for  a  peaceful  and  lawful  purpose."  The  right 
of  the  people  peaceably  to  assemble  for  lawful  purposes  existed 
long  before  the  adoption  of  the  Constitution  of  the  United  States. 
In  fact,  it  is,  and  always  has  been,  one  of  the  attributes  of  citizen- 
ship under  a  free  government.  ...  It  was  not,  therefore,  a  right 
granted  to  the  people  by  the  Constitution.  The  government  of 
the  United  States  when  established  found  it  in  existence,  with  the 
obligation  on  the  part  of  the  States  to  afford  it  protection.  .  .  . 

The  first  amendment  to  the  Constitution  prohibits  Congress 
from  abridging  "  the  right  of  the  people  to  assemble  and  to  petition 
the  government  for  a  redress  of  grievances."  This,  like  the  other 
amendments  proposed  and  adopted  at  the  same  time,  was  not 
intended  to  limit  the  powers  of  the  State  governments  in  respect 
to  their  own  citizens,  but  to  operate  upon  the  national  govern- 
ment alone.  .  .  . 

The  particular  amendment  now  under  consideration  assumes  the 
existence  of  the  right  of  the  people  to  assemble  for  lawful  purposes, 
and  protects  it  against  encroachment  by  Congress.  The  right  was 
not   created   by  the  amendment;    neither  was  its   continuance 


UNITED  STATES  V.    CRUIKSHANK.  619 

guaranteed,  except  as  against  congressional  interference.  For 
their  protection  in  its  enjoyment,  therefore,  the  people  must  look 
to  the  States.  The  power  for  that  purpose  was  originally  placed 
there,  and  it  has  never  been  surrendered  to  the  United  States. 

The  right  of  the  people  peaceably  to  assemble  for  the  purpose 
of  petitioning  Congress  for  a  redress  of  grievances,  or  for  an>i;hing 
else  connected  %\'ith  the  powers  or  the  duties  of  the  national  govern- 
ment, is  an  attribute  of  national  citizenship,  and,  as  such,  under 
the  protection  of,  and  guaranteed  by,  the  United  States.  The 
very  idea  of  a  government,  republican  in  form,  implies  a  right  on 
the  part  of  its  citizens  to  meet  peaceably  for  consultation  in  respect 
to  pubhc  affairs  and  to  petition  for  a  redress  of  grievances.  If  it 
had  been  alleged  in  these  counts  that  the  object  of  the  defendants 
was  to  prevent  a  meeting  for  such  a  purpose,  the  case  would  have 
been  within  the  statute,  and  \\'ithin  the  scope  of  the  sovereignty  of 
the  United  States.  Such,  however,  is  not  the  case.  The  offense, 
as  stated  in  the  indictment,  wll  be  made  out,  if  it  be  shown  that 
the  object  of  the  conspiracy  was  to  prevent  a  meeting  for  any  law- 
ful purpose  whatever. 

The  second  and  tenth  counts  are  equally  defective.  The  right 
there  specified  is  that  of  "  bearing  arms  for  a  la^N'ful  purpose." 
This  is  not  a  right  granted  by  the  Constitution.  Neither  is  it  in 
any  manner  dependent  upon  that  instrument  for  its  existence. 
The  second  amendment  declares  that  it  shall  not  be  infringed; 
but  this,  as  has  been  seen,  means  no  more  than  that  it  shall  not  be 
infringed  by  Congress.  .  .  . 

The  third  and  eleventh  counts  are  even  more  objectionable. 
They  charge  the  intent  to  have  been  to  deprive  the  citizens  named, 
they  being  in  Louisiana,  "  of  their  respective  several  lives  and 
liberty  of  person  without  due  process  of  law."  This  is  nothing  else 
than  alleging  a  conspiracy  to  falsely  imprison  or  murder  citizens 
of  the  United  States,  being  within  the  territorial  jurisdiction  of  the 
State  of  Louisiana.  The  rights  of  life  and  personal  liberty  are 
natural  rights  of  man.  "  To  secure  these  rights,"  says  the  Declara- 
tion of  Independence,  "  governments  are  instituted  among  men, 
deriving  their  just  powers  from  the  consent  of  the  governed."  The 
very  highest  duty  of  the  States,  when  they  entered  into  the  Union 
under  the  Constitution,  was  to  protect,  all  persons  ^athin  their 
boundaries  in  the  enjoyment  of  these  "  unalienable  rights  with 
which  they  were  endowed  by  their  Creator. ' '  Sovereignty,  for  this 
purpose,  rests  alone  with  the  States.  It  is  no  more  the  duty  or 
wnthin  the  power  of  the  United  States  to  punish  for  a  conspiracy 


620  RACE    DISCRIMINATION. 

to  falsely  imprison  or  murder  within  a  State,  than  it  would  be  to 
punish  for  false  imprisonment  or  murder  itself. 

The  fourteenth  amendment  prohibits  a  State  from  depriving  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law;  but 
this  adds  nothing  to  the  rights  of  one  citizen  as  against  another. 
It  simply  furnishes  an  additional  guaranty  against  any  encroach- 
ment by  the  States  upon  the  fundamental  rights  which  belong  to 
every  citizen  as  a  member  of  society.  .  .  . 

The  fourth  and  twelfth  counts  charge  the  intent  to  have  been  to 
prevent  and  hinder  the  citizens  named,  who  were  of  African  de- 
scent and  persons  of  color,  in  "  the  free  exercise  and  enjoyment  of 
their  several  right  and  privilege  to  the  full  and  equal  benefit  of  all 
laws  and  proceedings,  then  and  there,  before  that  time,  enacted  or 
ordained  by  the  said  State  of  Louisiana  and  by  the  United  States; 
and  then  and  there,  at  that  time,  being  in  force  in  the  said  State 
and  District  of  Louisiana  aforesaid,  for  the  security  of  their  respec- 
tive persons  and  property,  then  and  there,  at  that  time  enjoyed  at 
and  within  said  State  and  District  of  Louisiana  by  white  persons, 
being  citizens  of  said  State  of  Louisiana  and  the  United  States,  for 
the  protection  of  the  persons  and  property  of  said  white  citizens." 
There  is  no  allegation  that  this  was  done  because  of  the  race  or 
color  of  the  persons  conspired  against.  When  stripped  of  its  ver- 
biage, the  case  as  presented  amounts  to  nothing  more  than  that  the 
defendants  conspired  to  prevent  certain  citizens  of  the  United 
States,  being  within  the  State  of  Louisiana,  from  enjoying  the  equal 
protection  of  the  laws  of  the  State  and  of  the  United  States. 

The  fourteenth  amenchnent  prohibits  a  State  from  denying  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws; 
but  this  provision  does  not,  any  more  than  the  one  which  precedes 
it,  and  which  we  have  just  considered,  add  anything  to  the  rights 
which  one  citizen  has  under  the  Constitution  against  another. 
The  equality  of  the  rights  of  citizens  is  a  principle  of  republicanism. 
Every  republican  government  is  in  duty  bound  to  protect  all  its 
citizens  in  the  enjoyment  of  this  principle,  if  within  its  power. 
That  duty  was  originally  assumed  by  the  States;  and  it  still 
remains  there.  The  only  obligation  resting  upon  the  United 
States  is  to  see  that  the  States  do  not  deny  the  right.  This  the 
amendment  guarantees,  but  no  more.  The  power  of  the  national 
government  is  limited  to  the  enforcement  of  this  guaranty.  .  .  . 

The  sixth  and  fourteenth  counts  state  the  intent  of  the  defend- 
ants to  have  been  to  hinder  and  prevent  the  citizens  named,  being 
of  African  descent,  and  colored,  "  in  the  free  exercise  and  enjoy- 


UNITED  STATES  V.    CRUIKSHANK.  621 

ment  of  their  several  and  respective  right  and  privilege  to  vote  at 
any  election  to  be  thereafter  by  law  had  and  held  by  the  people 
in  and  of  the  said  State  of  Louisiana,  or  by  the  people  of  and  in  the 
parish  of  Grant  aforesaid."  In  Minor  v.  Happersett,  21  Wall.  178, 
we  decided  that  the  Constitution  of  the  United  States  has  not 
conferred  the  right  of  suffrage  upon  any  one,  and  that  the  United 
States  have  no  voters  of  their  own  creation  in  the  States. 
In  United  States  v.  Reese  et  ah,  92  U.  S.  214,  we  hold  that  the  fif- 
teenth amendment  has  invested  the  citizens  of  the  United  States 
with  a  new  constitutional  right,  which  is,  exemption  from  dis- 
crimination in  the  exercise  of  the  elective  franchise  on  account 
of  race,  color,  or  previous  condition  of  servitude.  From  this  it 
appears  that  the  right  of  suffrage  is  not  a  necessary  attribute  of 
national  citizenship;  but  that  exemption  from  discrimination  in 
the  exercise  of  that  right  on  account  of  race,  &c.,  is.  The  right  to 
vote  in  the  States  comes  from  the  States;  but  the  exemption  from 
the  prohibited  discrimination  comes  from  the  United  States.  The 
first  has  not  been  granted  or  secured  by  the  Constitution  of  the 
United  States;  but  the  last  has  been. 

Inasmuch,  therefore,  as  it  does  not  appear  in  these  counts  that 
the  intent  of  the  defendants  was  to  prevent  these  parties  from 
exercising  their  right  to  vote  on  account  of  their  race,  &c.,  it  does 
not  appear  that  it  was  their  intent  to  interfere  with  any  right 
granted  or  secured  by  the  Constitution  or  laws  of  the  United  States. 
We  may  suspect  that  race  was  the  cause  of  the  hostility;  but  it  is 
not  so  averred.  This  is  material  to  a  description  of  the  substance 
of  the  offense,  and  cannot  be  supplied  by  implication.  Every- 
thing essential  must  be  charged  positively,  and  not  inferentially. 
The  defect  here  is  not  in  form,  but  in  substance. 

The  seventh  and  fifteenth  counts  are  no  better  than  the  sixth  and 
fourteenth.  The  intent  here  charged  is  to  put  the  parties  named  in 
great  fear  of  bodily  harm,  and  to  injure  and  oppress  them,  because, 
being  and  having  been  in  all  things  qualified,  they  had  voted  "  at 
an  election  before  that  time  had  and  held  according  to  law  by  the 
people  of  the  said  State  of  Louisiana,  in  said  State,  to  wit,  on  the 
fourth  day  of  November,  a.d.  1872,  and  at  divers  other  elections  by 
the  people  of  the  State,  also  before  that  time  had  and  held  accord- 
ing to  law."  There  is  nothing  to  show  that  the  elections  voted  at 
were  any  other  than  State  elections,  or  that  the  conspiracy  was 
formed  on  account  of  the  race  of  the  parties  against  whom  the 
conspirators  were  to  act.  The  charge  as  made  is  really  of  nothing 
more  than  a  conspiracy  to  commit  a  breach  of  the  peace  within  a 


622  RACE    DISCIUMINATION. 

State.  Certainly  it  will  not  be  claimed  that  the  United  States 
have  the  power  or  are  required  to  do  mere  police  duty  in  the  States. 
If  a  State  cannot  protect  itself  against  domestic  violence,  the 
United  States  may,  upon  the  call  of  the  executive,  when  the  legisla- 
ture cannot  be  convened,  lend  their  assistance  for  that  purj^ose. 
This  is  a  guaranty  of  the  Constitution  (art.  4,  sect.  4);  but  it 
applies  to  no  case  like  this. 

We  are,  therefore,  of  the  opinion  that  the  first,  second,  third, 
fourth,  sixth,  seventh,  ninth,  tenth,  eleventh,  twelfth,  fourteenth, 
and  fifteenth  counts  do  not  contain  charges  of  a  criminal  nature 
made  indictable  under  the  laws  of  the  United  States,  and  that  con- 
sequently they  are  not  good  and  sufficient  in  law.  They  do  not 
show  that  it  was  the  intent  of  the  defendants,  by  their  conspiracy, 
to  hinder  or  prevent  the  enjoyment  of  any  right  granted  or  secured 
by  the  Constitution. 

We  come  now  to  consider  the  fifth  and  thirteenth  and  the  eighth 
and  sixteenth  counts,  which  may  be  brought  together  for  that  pur- 
pose. .  .  . 

According  to  the  view  we  take  of  these  counts,  the  question  is  not 
whether  it  is  enough,  in  general,  to  describe  a  statutory  offense  in 
the  language  of  the  statute,  but  whether  the  offen.se  has  here  been 
described  at  all.  .  .  .  These  counts  in  the  indictment  charge,  in 
substance,  that  the  intent  in  this  case  was  to  hinder  and  prevent 
these  citizens  in  the  free  exercise  and  enjoyment  of  "  every,  each, 
all,  and  singular  "  the  rights  granted  them  by  the  Constitution, 
&c.  There  is  no  specification  of  any  particular  right.  The 
language  is  broad  enough  to  cover  all. 

In  criminal  cases,  prosecuted  under  the  laws  of  the  United 
States,  the  accused  has  the  constitutional  right  "  to  be  informed 
of  the  nature  and  cause  of  the  accusation."  Amend.  VI.  In 
United  States  v.  Mills,  7  Pet.  142,  this  was  construed  to  mean, 
that  the  indictment  must  set  forth  the  ofTense  "  with  clearness  and 
all  necessary  certainty,  to  apprise  the  accused  of  the  crime  with 
which  he  stands  charged  ";  and  in  United  States  v.  Cook,  17  Wall. 
174,  that  "  every  ingredient  of  which  the  offense  is  composed 
must  be  accurately  and  clearly  alleged."  .  .  . 

These  counts  are  too  vague  and  general.  They  lack  the  cer- 
tainty and  precision  required  by  the  established  rules  of  criminal 
pleading.  It  follows  that  they  are  not  good  and  sufficient  in  law. 
They  are  so  defective  that  no  judgment  of  conviction  should  be 
pronounced  upon  them. 


STRAUDER   V.    WEST   VIRGINIA.  623 

The  order  of  the  Circuit  Court  arresting  the  judgment  upon  the 
verdict  is,  therefore,  affirmed;  and  the  cause  remanded,  with  instruc- 
tions to  discharge  the  defendants. 

Clifford,  J.,  dissenting. 

I  concur  that  the  judgment  in  this  case  should  be  arrested,  but 
for  reasons  quite  different  from  those  given  by  the  court.  .  ,  , 


STRAUDER  v.  WEST  VIRGINIA. 

Supreme  Court  of  the  United  States.     1880. 

[100  United  Stales,  303.] 

Error  to  the  Supreme  Court  of  Appeals  of  West  Virginia. 

The  facts  are  stated  in  the  opinion  of  the  court. 

C.  Devens  and  G.  0.  Davenport,  for  i)hiintiff  in  error;  and  R. 
White,  Attorney  General  of  West  Virginia,  and  J.  W.  Green, 
contra. 

Strong,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  a  colored  man,  was  indicted  for  murder  in 
the  Circuit  Court  of  Ohio  County,  in  West  Virginia,  on  the  20th  of 
October,  1874,  and  upon  trial  was  convicted  and  sentenced.  The 
record  was  then  removed  to  the  Supreme  Court  of  the  State,  and 
there  the  judgment  of  the  Circuit  Court  was  affirmed.  The  present 
case  is  a  writ  of  error  to  that  court,  and  it  is  now,  in  substance, 
averred  that  at  the  trial  in  the  State  court  the  defendant  (now 
plaintiff  in  error)  was  denied  rights  to  which  he  was  entitled  under 
the  Constitution  and  laws  of  the  United  States. 

In  the  Circuit  Court  of  the  State,  before  the  trial  of  the  indict- 
ment was  commenced,  the  defendant  presented  his  petition, 
verified  by  his  oath,  praying  for  a  removal  of  the  cause  into  the 
Circuit  Court  of  the  United  States,  assigning,  as  ground  for  the 
removal,  that  "  by  virtue  of  the  laws  of  the  State  of  West  Virginia 
no  colored  man  was  eligible  to  be  a  member  of  the  grand  jury  or  to 
serve  on  a  petit  jury  in  the  State;  that  white  men  are  so  eligible, 
and  that  by  reason  of  his  being  a  colored  man  and  having  l)een  a 
slave,  he  had  reason  to  believe,  and  did  believe,  he  could  not  have 
the  full  and  equal  benefit  of  all  laws  and  proceedings  in  the  State  of 
West  Virginia  for  the  security  of  his  person  as  is  enjoyed  by  white 


624  RACE    DISCRIMINATION'. 

citizens,  and  that  he  had  less  chance  of  enforcing  in  the  courts  of 
the  State  his  rights  on  the  prosecution,  as  a  citizen  of  tlie  United 
States,  and  that  the  probabihties  of  a  denial  of  them  to  him  as 
such  citizen  on  every  trial  which  might  take  place  on  the  indict- 
ment in  the  courts  of  the  State  were  much  more  enhanced  than  if 
he  was  a  white  man."  This  petition  was  denied  by  the  State 
court,  and  the  cause  was  forced  to  trial. 

Motions  to  quash  the  venire,  "  because  the  law  under  which  it 
was  issued  was  unconstitutional,  null,  and  void,"  and  successive 
motions^to  challenge  the  array  of  the  panel,  for  a  new  trial,  and  in 
arrest  of  judgment  were  then  made,  all  of  which  were  overruled 
and  made  by  exceptions  parts  of  the  record. 

The  law  of  the  State  to  which  reference  was  made  in  the  petition 
for  removal  and  in  the  several  motions  was  enacted  on  the  12th  of 
March,  1873  (Acts  of  1872-73,  p.  102),  and  it  is  as  follows:  "  All 
white  male  persons  who  are  twenty-one  years  of  age  and  who  are 
citizens  of  this  State  shall  be  liable  to  serve  as  jurors,  except  as 
herein  provided."     The  persons  excepted  are  State  officials. 

In  this  court,  several  errors  have  been  assigned,  and  the  control- 
ling questions  underlying  them  all  are,  first,  whether,  by  the 
Constitution  and  laws  of  the  United  States,  every  citizen  of  the 
United  States  has  a  right  to  a  trial  of  an  indictment  against  him  by 
a  jury  selected  and  impanelled  without  discrimination  against  his 
race  or  color,  because  of  race  or  color;  and,  second,  if  he  has  such  a 
right,  and  is  denied  its  enjoyment  by  the  State  in  which  he  is  in- 
dicted, may  he  cause  the  case  to  be  removed  into  the  Circuit 
Court  of  the  United  States  ? 

It  is  to  be  observed  that  the  first  of  these  questions  is  not 
whether  a  colored  man,  when  an  indictment  has  been  preferred 
against  him,  has  a  right  to  a  grand  or  a  petit  jury  composed  in 
whole  or  in  part  of  persons  of  his  own  race  or  color,  but  it  is 
whether,  in  the  composition  or  selection  of  jurors  by  whom  he  is 
to  be  indicted  or  tried,  all  persons  of  his  race  or  color  may  be 
excluded  by  law,  solely  because  of  their  race  or  color,  so  that  by 
no  possibility  can  any  colored  man  sit  upon  the  jury. 

The  questions  are  important,  for  they  demand  a  construction 
of  the  recent  amendments  of  the  Constitution.  If  the  defendant 
has  a  right  to  have  a  jury  selected  for  the  trial  of  his  case  without 
discrimination  against  all  persons  of  his  race  or  color,  because  of 
their  race  or  color,  the  right,  if  not  created,  is  protected  by  those 
amencbnents,  and  the  legislation  of  Congress  under  them.  The 
Fourteenth  Amendment  ordains  that  "  all  persons  born  or  natu- 


STRAUDER   V.    WEST   VIRGINIA.  625 

ralized  in  the  United  States  and  subject  to  the  jurisdiction  thereof 
are  citizens  of  the  United  States  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  laws  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States,  nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law,  nor  den}'  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws." 

This  is  one  of  a  series  of  constitutional  provisions  having  a 
common  purpose;  namely,  securing  to  a  race  recently  emancipated, 
a  race  that  through  many  generations  had  been  held  in  slaverj^  all 
the  civil  rights  that  the  superior  race  enjoy.  The  true  spirit  and 
meaning  of  the  amendments,  as  we  said  in  the  Slaughter-House 
Cases  (16  Wall.  36),  cannot  be  understood  without  keeping  in  view 
the  history  of  the  times  when  the\'  were  adopted,  and  the  general 
objects  they  plainly  sought  to  accomplish.  At  the  time  when  they 
were  incorporated  into  the  constitution,  it  required  little  knowl- 
edge of  human  nature  to  anticipate  that  those  who  had  long  been 
regarded  as  an  inferior  and  subject  race  would,  when  suddenly 
raised  to  the  rank  of  citizenship,  be  looked  upon  with  jealousy  and 
positive  dislike,  and  that  State  laws  might  be  enacted  or  enforced 
to  perpetuate  the  distinctions  that  had  before  existed.  Discrim- 
inations against  them  had  been  habitual.  It  was  well  known  that 
in  some  States  laws  making  such  discriminations  then  existed,  and 
others  might  well  be  expected.  The  colored  race,  as  a  race,  was 
abject  and  ignorant,  and  in  that  condition  was  unfitted  to  com- 
mand the  respect  of  those  who  had  superior  intelligence.  Their 
training  had  left  them  mere  children,  and  as  such  they  needed' the 
protection  which  a  wise  government  extends  to  those  who  are 
unable  to  protect  themselves.  They  especially  needed  protection 
against  unfriendly  action  in  the  States  where  they  were  resident. 
In  was  in  view  of  these  considerations  the  Fourteenth  Amend- 
ment was  framed  and  adopted.  It  was  designed  to  assure  to  the 
colored  race  the  enjoyment  of  all  the  civil  rights  that  under  the  law 
are  enjoyed  by  white  persons,  and  to  give  to  that  race  the  protec- 
tion of  the  general  government,  in  that  enjojTnent,  whenever  it 
should  be  denied  by  the  States.  It  not  only  gave  citizenship  and 
the  privileges  of  citizenship  to  persons  of  color,  but  it  denied  to 
any  State  the  power  to  withhold  from  them  the  equal  protection  of 
the  laws,  and  authorized  Congress  to  enforce  its  provisions  by 
appropriate  legislation.  .  .  . 

If  this  is  the  spirit  and  meaning  of  the  amendment,  whether  it 
means  more  or  not,  it  is  to  be  construed  liberally,  to  carry  out  the 


626  RACE    DISCRIMINATION. 

purposes  of  its  framers.  It  ordains  that  no  State  shall  make  or 
enforce  any  laws  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States  (evidently  referring  to  the  newly 
made  citizens,  who,  being  citizens  of  the  United  States,  are  de- 
clared to  be  also  citizens  of  the  State  in  which  they  reside).  It 
ordains  that  no  State  shall  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law,  or  deny  to  any  {person  within 
its  jurisdiction  the  equal  protection  of  the  laws.  What  is  this  but 
declaring  that  the  law  in  the  States  shall  be  the  same  for  the  black 
as  for  the  white;  that  all  persons,  whether  colored  or  white,  shall 
stand  equal  before  the  laws  of  the  State,  and,  in  regard  to  the 
colored  race,  for  whose  protection  the  amendment  was  primarily 
designed,  that  no  discrimination  shall  be  made  against  them  by  law 
because  of  their  color  ?  The  words  of  the  amendment,  it  is  true, 
are  prohibitory,  but  they  contain  a  necessary  implication  of  a 
positive  immunity,  or  right,  most  valuable  to  the  colored  race,  — 
the  right  to  exemption  from  unfriendly  legislation  against  them 
distinctively  as  colored,  —  exemption  from  legal  discriminations, 
implying  inferiority  in  civil  society,  lessening  the  security  of  their 
enjoyment  of  the  rights  which  others  enjoy,  and  discriminations 
which  are  steps  towards  reducing  them  to  the  condition  of  a  subject 
race. 

That  the  West  Virginia  statute  respecting  juries  —  the  statute 
that  controlled  the  selection  of  the  grand  and  petit  jury  in  the  case 
of  the  plaintiff  in  error  —  is  such  a  discrimination  ought  not  to  be 
doubted.  Nor  would  it  be  if  the  persons  excluded  by  it  were 
while  men.  If  in  those  States  where  the  colored  people  constitute 
a  majority  of  the  entire  population  a  law  should  be  enacted  exclud- 
ing all  white  men  from  jury  service,  thus  den^dng  to  them  the 
privilege  of  participating  equally  with  the  blacks  in  the  administra- 
tion of  justice,  we  apprehend  no  one  would  be  heard  to  claim  that 
it  would  not  be  a  denial  to  white  men  of  the  equal  protection  of  the 
laws.  Nor  if  a  law  should  be  passed  excluding  all  naturalized 
Celtic  Irishmen,  would  there  be  any  doubt  of  its  inconsistency 
with  the  spirit  of  the  amendment.  The  very  fact  that  colored 
people  are  singled  out  and  expressly  denied  by  a  statute  all  right  to 
participate  in  the  achninistration  of  the  law,  as  jurors,  because  of 
their  color,  though  they  are  citizens,  and  may  be  in  other  respects 
fully  qualified,  is  practically  a  brand  upon  them,  affixed  by  the 
law,  an  assertion  of  their  inferiority,  and  a  stimulant  to  that  race 
prejudice  which  is  an  impediment  to  securing  to  individuals  of  the 
race  that  equal  justice  which  the  law  aims  to  secure  to  all  others. 


STRAUDER   V.    WEST   VIRGINIA.  627 

The  right  to  a  trial  by  jurj'  is  guaranteed  to  every  citizen  of  West 
Virginia  by  the  Constitution  of  that  State,  and  the  constitution  of 
juries  is  a  very  essential  part  of  the  protection  such  a  mode  of  trial 
is  intended  to  secure.  The  very  idea  of  a  jury  is  a  body  of  men 
composed  of  the  peers  or  equals  of  the  person  whose  rights  it  is 
selected  or  summoned  to  determine;  that  is,  of  his  neighbors, 
fellows,  associates,  persons  having  the  same  legal  status  in  society 
as  that  which  he  holds.  Blackstone,  in  his  Commentaries,  says, 
"  The  right  of  trial  by  jurj%  or  the  countr>%  is  a  trial  by  the  peers  of 
everj'  Englishman,  and  is  the  grand  bulwark  of  his  liberties,  and  is 
secured  to  him  by  the  Great  Charter."  It  is  also  guarded  by 
statutory'  enactments  intended  to  make  impossible  what  Mr. 
Bentham  called  "  packing  juries."  It  is  well  known  that  prej- 
udices often  exist  against  particular  classes  in  the  community, 
which  sway  the  judgment  of  jurors,  and  which,  therefore,  operate 
in  some  cases  to  deny  to  persons  of  those  classes  the  full  enjoyment 
of  that  protection  which  others  enjoy.  Prejudice  in  a  local  com- 
munity is  held  to  be  a  reason  for  a  change  of  venue.  The  framers 
of  the  constitutional  amendment  must  have  known  full  well  the 
existence  of  such  prejudice  and  its  likelihood  to  continue  against 
the  manumitted  slaves  and  their  race,  and  that  knowledge  was 
doubtless  a  motive  that  led  to  the  amendment.  By  their  manu- 
mission and  citizenship  the  colored  race  became  entitled  to  the 
equal  protection  of  the  laws  of  the  States  in  which  they  resided; 
and  the  apprehension  that  through  prejudice  they  might  be  denied 
that  equal  protection,  that  is,  that  there  might  be  discrimination 
against  them,  was  the  inducement  to  bestow  upon  the  national 
government  the  power  to  enforce  the  provision  tliat  no  State  shall 
deny  to  them  the  equal  protection  of  the  laws.  Without  the  appre- 
hended existence  of  prejudice  that  portion  of  the  amendment 
would  have  been  umiecessar\',  and  it  might  have  been  left  to  the 
States  to  extend  equality  of  protection. 

In  view  of  these  considerations,  it  is  hard  to  see  why  the  statute 
of  West  Virginia  should  not  be  regarded  as  discriminating  against  a 
colored  man  when  he  is  put  upon  trial  for  an  alleged  criminal 
offense  against  the  State.  It  is  not  easy  to  comprehend  how  it 
can  be  said  that  while  ever}'  white  man  is  entitled  to  a  trial  by  a 
jury  selected  from  persons  of  his  own  race  or  color,  or,  rather, 
selected  without  discrimination  against  his  color,  and  a  negro  is 
not,  the  latter  is  equally  protected  by  the  law  with  the  former.  Is 
not  protection  of  life  and  liberty  against  race  or  color  prejudice, 
a  right,  a  legal  right,  under  the  constitutional  amendment  ?     And 


628  RACE    DISCRIMINATION. 

how  can  it  be  maintained  that  compelling;  a  colored  man  to  sub- 
mit to  a  trial  for  his  life  by  a  jury  drawn  from  a  panel  from  which 
the  State  has  expressly  excluded  every  man  of  his  race,  because  of 
color  alone,  however  well  qualified  in  other  respects,  is  not  a  denial 
to  him  of  equal  legal  protection  ? 

We  do  not  say  that  within  the  limits  from  which  it  is  not  excluded 
by  the  amenchnent  a  State  may  not  prescribe  the  qualifications  of 
its  jurors,  and  in  so  doing  make  discriminations.  It  may  confine 
the  selection  to  males,  to  freeholders,  to  citizens,  to  i)ersons  within 
certain  ages,  or  to  persons  having  educational  qualifications.  .We 
do  not  believe  the  Fourteenth  Amendment  was  ever  intended  to 
prohibit  this.  Looking  at  its  history,  it  is  clear  it  had  no  such  pur- 
pose. Its  aim  was  against  discrimination  because  of  race  or  color. 
As  we  have  said  more  than  once,  its  design  was  to  protect  an  eman- 
cipated race,  and  to  strike  down  all  possil)le  legal  discriminations 
against  those  who  belong  to  it.  .  .  .  We  are  not  now  called  upon 
to  affirm  or  deny  that  it  had  otlier  purposes. 

The  Fourteenth  Amendment  makes  no  attempt  to  enumerate 
the  rights  it  designed  to  protect.  It  speaks  in  general  terms,  and 
those  are  as  comprehensive  as  possible.  Its  language  is  prohil)i- 
tory;  but  every  prohibition  implies  the  existence  of  rights  and 
immunities,  prominent  among  which  is  an  immunity  from  in- 
equality of  legal  protection,  either  for  life,  liberty,  or  property. 
Any  State  action  that  denies  this  immunity  to  a  colored  man  is  in 
conflict  with  the  Constitution. 

Concluding,  therefore,  that  the  statute  of  West  Virginia,  dis- 
criminating in  the  selection  of  jurors,  as  it  does,  against  negroes 
because  of  their  color,  amounts  to  a  denial  of  the  equal  protection 
of  the  laws  to  a  colored  man  when  he  is  put  upon  trial  for  an  alleged 
offense  against  the  State,  it  remains  only  to  be  considered  whether 
the  power  of  Congress  to  enforce  the  provisions  of  tlie  Fourteenth 
Amendment  by  appropriate  legislation  is  sufficient  to  justify  the 
enactment  of  sect.  641  of  the  Revised  Statutes. 

A  right  or  an  immunity,  whether  created  by  the  Constitution  or 
only  guaranteed  by  it,  even  without  any  express  delegation  of  power, 
may  be  protected  by  Congress.  Prigg  v.  The  Commonwealth 
of  Pennsylvania,  16  Pet.  539.  .  .  .  There  is  express  authority  to 
protect  the  rights  and  immunities  referred  to  in  the  Fourteenth 
Amendment,  and  to  enforce  observance  of  them  by  appropriate 
congressional  legislation.  And  one  very  efficient  and  appropriate 
mode  of  extending  such  protection  and  securing  to  a  party  the 
enjoyment  of  the  right  or  immunity,  is  a  law  providing  for  the 


STRAUDER   V.    WEST   VIRGINIA.  629 

removal  of  his  case  from  a  State  court,  in  which  the  right  is  denied 
by  the  State  law,  into  a  federal  court,  where  it  will  be  upheld. 
This  is  an  ordinary  mode  of  protecting  rights  and  immunities  con- 
ferred by  the  federal  Constitution  and  laws.  Sect.  641  is  such  a 
provision.  It  enacts  that  "  when  any  civil  suit  or  criminal  prose- 
cution is  commenced  in  any  State  court  for  any  cause  whatsoever 
against  any  person  who  is  denied,  or  cannot  enforce,  in  the  judicial 
tribunals  of  the  State,  or  in  the  part  of  the  State  where  such  prose- 
cution is  pending,  any  right  secured  to  him  by  any  law  providing 
for  the  equal  civil  rights  of  citizens  of  the  United  States,  or  of  all 
persons  within  the  jurisdiction  of  United  States,  such  suit  or  prose- 
cution may,  upon  the  petition  of  such  defendant,  filed  in  said 
State  court  at  any  time  before  the  trial,  or  final  hearing  of  the  case, 
stating  the  facts,  and  verified  by  oath,  be  removed  before  trial  into 
the  next  Circuit  Court  of  the  United  States  to  be  held  m  the  dis- 
trict where  it  is  pending." 

This  act  plainly  has  reference  to  sects.  1977  and  1978  of  the 
statutes  which  partially  enumerate  the  rights  and  immunities 
intended  to  be  guaranteed  by  the  Constitution,  the  first  of  which 
declares  that  "  all  persons  within  the  jurisdiction  of  the  United 
States  shall  have  the  same  right  in  everj^  State  and  Territory  to 
make  and  enforce  contracts,  to  sue,  be  parties,  give  evidence,  and 
to  the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  persons  and  property,  ^s  is  enjoyed  by  white  citizens, 
and  shall  be  subject  to  like  punishment,  pains,  penalties,  taxes, 
licenses,  and  exactions  of  every  kind,  and  to  no  other."  This  act 
puts  in  the  form  of  a  statute  what  had  been  substantially  ordained 
by  the  constitutional  amendment.  It  was  a  step  towards  enforcing 
the  constitutional  provisions.  Sect.  641  was  an  advanced  step, 
fully  warranted,  we  think,  by  the  fifth  section  of  the  Fourteenth 
Amendment.  ... 

That  the  petition  of  the  plaintiff  in  error,  filed  by  him  in  the 
State  court  before  the  trial  of  his  case,  made  a  case  for  removal 
into  the  federal  Circuit  Court,  under  sect.  641,  is  very  plain,  if, 
by  the  constitutional  amendment  and  sect.  1977  of  the  Revised 
Statutes,  he  was  entitled  to  immunity  from  discrimination  against 
him  in  the  selection  of  jurors,  because  of  their  color,  as  we  have 
endeavored  to  show  that  he  was.  It  set  forth  sufficient  facts  to 
exhibit  a  denial  of  that  immunity,  and  a  denial  by  the  statute  law 
of  the  State. 

There  was  error,  therefore,  in  proceeding  to  the  trial  of  the 
indictment  against  him  after  his  petition  was  filed,  as  also  in  over- 


(330  RACE   DISCRIMINATION. 

ruling  his  challenge  to  the  array  of  the  jury,  and  in  refusing  to 
quash  the  panel. 

The  judgment  of  the  Supreme  Court  of  West  \'irginia  will  ije 
reversed,  and  the  case  remitted  with  instructions  to  reverse  the 
judgment  of  the  Circuit  Court  of  Ohio  county;  and  it  is 

.So  ordered.^ 

Field,  J.  I  dissent  from  the  judgment  of  the  court  in  this  case, 
on  the  grounds  stated  in  my  opinion  in  Ex  parte  Virginia,  100  U.  S. 
349,  and  Mr.  Justice  Clifford  concurs  with  me. 


Ex  parte  VIRGINIA. 
Supreme  Court  of  the  United  States.     1880. 

[100  United  Stales,  339.) « 

Petition  for  a  writ  of  habeas  corjms. 

The  act  of  Congress  of  Mar.  1,  1875,  sect.  4  (18  Stat.,  part  3, 
336),  enacted  that"  no  citizen  .  .  .  shall  be  disqualified  for  service 
as  grand  or  petit  juror  in  any  court  of  the  United  States,  or  of  any 
State,  on  account  of  race,  color,  or  previous  condition  of  servitude; 
and  any  officer  or  other  person  charged  with  any  duty  in  the  selec- 
tion or  summoning  of  jurors  who  shall  exclude  or  fail  to  summon 
any  citizen  for  the  cause  aforesaid  shall  ...  be  deemed  guilty  of  a 
misdemeanor,  and  be  fined  not  more  than  $5000."  Under  this 
statute  an  indictment  was  found  in  the  United  States  District 
Court  for  the  Western  District  of  Mrginia,  alleging  that  Coles, 
being  a  judge  of  a  county  court,  and  an  officer  charged  by  law  with 
selecting  jurors,  excluded  and  failed  to  select  as  grand  and  petit 
jurors  certain  citizens  of  African  race  and  black  color,  possessing 

1  Compare  Virginia  v.  Rives,  100  U.  S.  313  (1880);  Gibson  v.  Mississippi, 
162  U.  S.  565  (1896);  Smith  v.  Mississippi,  162  U.  S.  592  (1896);  Murray  v. 
Louisiana,  163  U.  S.  101  (1896);  Williams  v.  Mississippi,  170  U.  S.  213  (1898); 
Tarrance  v.  Florida,  188  U.  S.  519  (1903);  Brownfield  v.  South  Carohna,  189 
U.  S.  426  (1903);  Martin  v.  Texas,  200  U.  S.  316  (1906);  Thomas  v.  Texas,  212 
U.  S.  278  (1909);  Frankhn  v.  South  Carolina,  218  U.  S.  161  (1910). 

And  see  Neal  v.  Delaware,  103  U.  S.  370  (1881);  Bush  v.  Kentucky,  107 
U.  S.  110  (1883);  Andrews  v.  Swartz,  156  U.- S.  272  (1895);  Carter  v.  Texas, 
177  U.  S.  442  (1900);  Rogers  v.  Alabama,  192  U.  S.  226  (1904).  —  Ed. 

2  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


Ex  parte  Virginia.  631 

all  qualifications  prescribed  by  law  and  being  by  him  excluded 
from  the  lists  made  out  by  him  as  such  judge  on  account  of  their 
race;  color,  and  previous  condition  of  servitude,  and  for  no  other 
reason.  Under  this  indictment  Coles  was  arrested  and  held  in 
custody.  Thereupon  he  presented  to  the  Supreme  Court  of  the 
United  States  a  petition  for  a  wTit  of  habeas  corpus  and  certiorari; 
and  the  State  of  Virginia  also  presented  a  petition  praying  for  a 
habeas  corpus  and  for  the  discharge  of  Coles. 

J.  G.  Field,  Attorney  General  of  Virginia,  and  ir.  A.  Robertson, 
for  petitioners;  and  Devens,  Attorney  General,  and  Srtiith,  Assis- 
tant Attorney  General,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  appellate  power  of  .this  court  is  broader  than  its  original,  and 
generally  —  that  is,  in  most  cases  —  it  may  be  said  that  the  issue  of 
a  writ  of  habeas  corpus  by  us,  when  it  is  directed  to  one  of  our 
inferior  courts,  is  an  exercise  of  our  appellate  jurisdiction.  .  .  . 

We  come  now  to  the  merits  of  the  case.  .  ,  . 

The  provisions  of  the  Constitution  that  relate  to  this  subject  are 
found  in  the  Thirteenth  and  Fourteenth  Amendments.  The 
Thirteenth  .  .  .  declares  that  Congress  shall  have  power  to 
enforce  the  article  by  appropriate  legislation.  This  has  been 
followed  by  the  Fourteenth  Amendment,  which  .  .  .  also  de- 
clares that  "  the  Congress  shall  have  power  to  enforce  b}'  appro- 
priate legislation  the  provisions  of  this  article." 

One  great  purpose  of  these  amendments  was  to  raise  the  colored 
race  from  that  condition  of  inferiority  and  servitude  in  which  most 
of  them  had  previously  stood,  into  perfect  equality  of  civil  rights 
with  all  other  persons  within  the  jurisdiction  of  the  States.  They 
were  intended  to  take  away  all  possibility  of  oppression  by  law 
because  of  race  or  color.  They  were  intended  to  be,  what  they 
really  are,  limitations  of  the  power  of  the  States  and  enlargements 
of  the  power  of  Congress.  They  are  to  some  extent  declarator^'  of 
rights,  and  though  in  form  prohibitions,  they  imply  immunities, 
such  as  may  be  protected  by  congressional  legislation.  .  .  . 

It  is  not  said  the  judicial  power  of  the  general  government 
shall  exiend  to  enforcing  the  prohibitions  and  to  protecting  the 
rights  and  immunities  guaranteed.  It  is  not  said  that  branch  of 
the  government  shall  be  authorized  to  declare  void  any  action  of  a 
State  in  violation  of  the  prohibitions.  It  is  the  power  of  Congress 
which  has  been  enlarged.  Congress  is  authorized  to  enforce  the 
prohibitions  by  appropriate  legislation.  Some  legislation  is  con- 
templated to  make  the  amendments  fully  effective.     Whatever 


532  RACE   DISCRIMINATION. 

legislation  is  appropriate,  that  is,  adapted  to  carry  out  the  objects 
the  amendments  have  in  view,  whatever  tends  to  enforce  submis- 
sion to  the  prohibitions  they  contain,  and  to  secure  to  all  persons 
the  enjoyment  of  perfect  equality  of  civil  rights  and  the  equal  pro- 
tection of  the  laws  against  State  denial  or  invasion,  if  not  prohib- 
ited, is  brought  within  the  domain  of  congressional  power. 

Nor  does  it  make  any  difference  that  such  legislation  is  restrictive 
of  what  the  State  might  have  done  before  the  constitutional 
amendment  was  adopted.  The  prohibitions  of  the  Fourteenth 
Amendment  are  directed  to  the  States,  and  they  are  to  a  degree 
restrictions  of  State  power.  It  is  these  which  Congress  is  em- 
powered to  enforce,  and  to  enforce  against  State  action,  however 
put  forth,  whether  that  action  be  executive,  legislative,  or  judicial. 
Such  enforcement  is  no  invasion  of  State  sovereignty.  No  law  can 
be,  which  the  people  of  the  States,  have,  by  the  Constitution  of  the 
United  States,  empowered  Congress  to  enact.  This  extent  of  the 
powers  of  the  general  government  is  overlooked,  when  it  is  said,  as 
it  has  been  in  this  case,  that  the  act  of  March  1,  1875,  interferes 
with  State  rights.  It  is  said  the  selection  of  jurors  for  her  courts 
and  the  administration  of  her  laws  belong  to  each  State;  that  they 
are  her  rights.  This  is  true  in  the  general.  But  in  exercising  her 
rights,  a  State  cannot  disregard  the  limitations  which  the  federal 
Constitution  has  applied  to  her  power.  Her  rights  do  not  reach 
to  that  extent.  Nor  can  she  deny  to  the  general  government  the 
right  to  exercise  all  its  granted  powers,  though  they  may  interfere 
with  the  full  enjoyment  of  rights  she  would  have  if  those  powers 
had  not  been  thus  granted.  Indeed,  every  addition  of  power  to 
the  general  government  involves  a  corresponding  diminution  of  the 
governmental  powers  of  the  States.     It  is  carved  out  of  them. 

We  have  said  the  prohibitions  of  the  Fourteenth  Amendment  are 
addressed  to  the  States.  They  are,  "  No  State  shall  make  or 
enforce  a  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States,  .  .  .  nor  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  law."  They  have 
reference  to  actions  of  the  political  body  denominated  a  State,  by 
whatever  instruments  or  in  whatever  modes  that  action  may  be 
taken.  A  State  acts  by  its  legislative,  its  executive,  or  its  judicial 
authorities.  It  can  act  in  no  other  way.  The  constitutional  pro- 
vision, therefore,  must  mean  that  no  agency  of  the  State,  or  of  the 
officers  or  agents  by  whom  its  powers  are  exerted,  shall  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 
Whoever,  by  virtue  of  public  position  under  a  State  government. 


Ex  parte  Virginia.  633 

deprives  another  of  property,  life,  or  liberty,  'without  clue  process  of 
law,  or  denies  or  takes  away  the  equal  protection  of  the  laws, 
violates  the  constitutional  inhibition;  and  as  he  acts  in  the  name 
and  for  the  State,  and  is  clothed  vrith  the  State's  power,  his  act  is 
that  of  the  State.  This  must  be  so,  or  the  constitutional  prohibi- 
tion has  no  meaning.  Then  the  State  has  clothed  one  of  its  agents 
with  power  to  annul  or  to  evade  it. 

But  the  constitutional  amendment  was  ordained  for  a  purpose. 
It  was  to  secure  equal  rights  to  all  persons,  and,  to  insure  to  all 
persons  the  enjo\Tnent  of  such  rights,  power  was  given  to  Congress 
to  enforce  its  provisions  by  appropriate  legislation.  Such  legisla- 
tion must  act  upon  persons,  not  upon  the  abstract  thing  denomi- 
nated a  State,  but  upon  the  persons  who  are  the  agents  of  the  State 
in  the  denial  of  the  rights  which  were  intended  to  be  secured.  Such 
is  the  act  of  March  1,  1875,  and  we  think  it  was  fully  authorized  by 
the  Constitution. 

The  argument  in  support  of  the  petition  for  a  habeas  corpus 
ignores  entirely  the  power  conferred  upon  Congress  by  the  Four- 
teenth Amendment.  Were  it  not  for  the  fifth  section  of  that 
amendment,  there  might  be  room  for  argument  that  the  first 
section  is  only  declarator}-  of  the  moral  duty  of  the  State,  as  was 
said  in  Commonwealth  of  Kentucky  v.  Dennison,  24  How.  66. 
The  act  under  consideration  in  that  case  provided  no  means  to 
compel  the  execution  of  the  duty  required  by  it,  and  the  Constitu- 
tion gave  none.  .  .  . 

We  do  not  perceive  how  holding  an  office  under  a  State,  and 
claiming  to  act  for  the  State,  can  relieve  the  holder  from  obligation 
to  obey  the  Constitution  of  the  United  States,  or  take  away  the 
power  of  Congress  to  punish  his  disobedience. 

It  was  insisted  during  the  argument  on  behalf  of  the  petitioner 
that  Congress  cannot  punish  a  State  judge  for  his  official  acts; 
and  it  was  assumed  that  Judge  Cole,  in  selecting  the  jurj-  as  he 
did,  was  performing  a  judicial  act.  This  assumption  cannot  be 
admitted.  W^hether  the  act  done  by  him  was  judicial  or  not  is 
to  be  determined  by  its  character,  and  not  by  the  character  of  the 
agent.  Whether  he  was  a  county  judge  or  not  is  of  no  importance. 
The  duty  of  selecting  jurors  might  as  well  have  been  committed  to 
a  private  person  as  to  one  holding  the  office  of  a  judge.  It  often  is 
given  to  county  commissioners,  or  supervisors,  or  assessors.  In 
former  tunes,  the  selection  was  made  by  the  sheriff.  In  such  cases, 
it  surely  is  not  a  judicial  act,  in  any  such  sense  as  is  contended  for 
here.     It  is  merely  a  ministerial  act,  as  much  so  as  the  act  of  a 


634  RACE    DISCRIMINATION'. 

sheriff  holding  an  execution,  in  determining  upon  what  piece  of 
property  he  will  make  a  levy,  or  the  act  of  a  roadmaster  in  selecting 
laborers  to  work  upon  the  roads.  That  the  jurors  are  selected  for  a 
court  makes  no  difference.  So  are  court-criers,  tipstaves,  sheriffs, 
&c.     Is  their  election  or  their  appointment  a  judicial  act  ? 

But  if  the  selection  of  jurors  could  be  considered  in  any  case  a 
judicial  act,  can  the  act  charged  against  the  petitioner  be  con- 
sidered such  when  he  acted  outside  of  his  authority  and  in  direct 
violation  of  the  spirit  of  the  State  statute  ?  That  statute  gave 
him  no  authority,  when  selecting  jurors,  from  whom  a  panel 
might  be  drawTi  for  a  circuit  court,  to  exclude  all  colored  men 
merely  because  they  were  colored.  Such  an  exclusion  was  not 
left  within  the  limits  of  his  discretion.  It  is  idle,  therefore,  to  say 
that  the  act  of  Congress  is  unconstitutional  because  it  inflicts 
penalties  upon  State  judges  for  their  judicial  action.  It  does  no 
such  thing. 

Upon  the  whole,  as  we  are  of  opinion  that  the  act  of  Congress 
upon  which  the  indictment  against  the  petitioner  was  founded  is 
constitutional,  and  that  he  is  correctly  held  to  answer  it,  and  as, 
therefore,  no  object  would  be  secured  by  issuing  a  writ  of  habeua 
corpus,  the  petitions  are 

Denied. 

Field,  J.,  with  whom  concurred  CLLFi-'OKD,  J.,  dissenting.  .  .  . 


CIVIL  RIGHTS  CASES. 

Supreme  Court  of  the  United  States.     1883. 

[109  United  Slates,  3.)  ^ 

On  certificates  of  division  from  the  Circuit  Courts  of  the  United 
States  for  the  District  of  Kansas,  the  Western  District  of  Missouri, 
and  the  Southern  District  of  New  York;  and  on  wTit  of  error  to 
the  Circuit  Courts  of  the  United  States  for  the  District  of  Cali- 
fornia and  the  Western  District  of  Tennessee. 

These  cases  were  five  cases  founded  upon  denj'ing  accommo- 
dations to  persons  of  color  in  disregard  of  the  Civil  Rights  Act  of 
March  1,  1875  (18  Stat.  335),  which  enacted:  — 

1  The  statement  has  not  been  reprinted.  —  Ed. 


CIVIL    RIGHTS    CASES.  635 


"  Sec.  1.   That  all  persons  within  the  jurisdiction  of  the  United 
States  shall  be  entitled  to  the  full  and  equal  enjoyment  of  the 
accommodations,   advantages,   facilities,   and  privileges  of  inns, 
public  conveyances  on  land  or  water,  theatres,  and  other  places 
of  public  amusement;   subject  only  to  the  conditions  and  limita- 
tions established  by  law,  and  applicable  alike  to  citizens  of  every 
race  and  color,  regardless  of  any  previous  condition  of  servitude. 
Sec.  2.    That  any  person  who  shall  violate  the  foregoing  section  .  .  . 
shall  .  .  .  forfeit  and  pay  the  sum  of  five  hundred  dollars  to  the 
person  aggrieved  .  .  .  and  shall  also  ...  be  deemed  guilty  of  a 
misdemeanor,  and  .  .  .  shall  l^e  fined  not  less  than  five  hundred 
or  more  than  one  thousand  dollars,  or  shall  be  imprisoned  not  less 
than    thirty   davs  or  more   than  one  year:    Provided,  That  all 
persons  may  elect  to  sue  for  the  penalty  aforesaid,  or  to  proceed 
under  their  rights  at  common  law  and  by  State  statutes;    and 
having  so  elected  .  .  .  their  right  to  proceed  in  the  other  jurisdic- 
tion shall  be  barred.     But  this  provision  shall  not  apply  to  criminal 
proceedings.  ...     And  provided  further,  That  a  judgment  for  the 
penalty  .  .  .,  or  a  judgment  upon  an  indictment,  shall  be  a  bar 
to  either  prosecution  respectively." 

Two  of  the  cases  were  indictments  for  denying  the  accommoda- 
tions of  an  inn;  two  were  respectively  an  information  and  an  indict- 
ment for  denying  the  privileges  of  a  theatre;  and  one  was  an  action 
for  the  penalty,  based  upon  a  denial  of  accommodations  in  a  rail- 
road car.  In  the  railroad  case  the  parties  assumed  the  validity  of 
the  act  of  Congress  and  the  defendant  succeeded;  but  in  the  other 
cases  the  constitutionality  of  the  act  was  questioned,  the  result 
being  in  three  instances  a  certificate  of  division  of  opinion  and  in 
one  instance  a  writ  of  error  to  a  judgment  sustaining  a  demurrer 
to  the  declaration. 

Phillips,  Solicitor  General,  for  the  United  States;  Randolph, 
for  Robinson  and  wife,  plaintiffs  in  error;  Humes  and  another,  for 
The  Memphis  &  Charleston  Railroad  Co.,  defendants  in  error;  and 
no  counsel  for  the  other  parties. 

Br.\dley,  J.,  delivered  the  opinion  of  the  court.  ... 

It  is  obvious  that  the  primary  and  important  question  in  all 
the  cases  is  the  constitutionality  of  the  law:  for  if  the  law  is  un- 
constitutional none  of  the  prosecutions  can  stand.  ... 

It  is  the  purpose  of  the  law  to  declare  that,  in  the  enjoyment  of 
the  accommodations  and  privileges  of  inns,  pubHc  conveyances, 
theatres,  and  other  places  of  public  amusement,  no  distmction 


636  RACE    DISCRIMINATION. 

shall  be  made  between  citizens  of  different  race  or  color,  or  between 
those  who  have,  and  those  who  have  not,  been  slaves.  .  .  . 

Has  Congress  constitutional  power  to  make  such  a  law  ?  Of 
course,  no  one  will  contend  that  the  power  to  pass  it  was  contained 
in  the  Constitution  before  the  adoption  of  the  last  three  amend- 
ments. The  power  is  sought,  first,  in  the  Fourteenth  Amend- 
ment, and  the  views  and  arguments  of  distinguished  Senators, 
advanced  whilst  the  law  was  under  consideration,  claiming  au- 
thority to  pass  it  by  virtue  of  that  amendment,  are  the  principal 
arguments  adduced  in  favor  of  the  power.  .  .  . 

The  first  section  of  the  Fourteenth  Amendment  (which  is  the 
one  relied  on),  after  declaring  who  shall  be  citizens  of  the  United 
States,  and  of  the  several  States,  is  prohibitory  in  its  character, 
and  prohibitory  upon  the  States.     It  declares  that : 

"  No  State  shall  make  or  enforce  any  law  which  shall  abridge  the  priv- 
ileges or  immunities  of  citizens  of  the  United  States;  nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property  ^^^thout  due  process  of  law; 
nor  deny  to  anv  person  within  its  jurisdiction  tlie  equal  protection  of  the 
laws." 

It  is  State  action  of  a  particular  character  that  is  prohilnted. 
Individual  invasion  of  individual  rights  is  not  the  subject-matter  of 
the  amendment.  It  has  a  deeper  and  broader  scope.  It  nullifies 
and  makes  void  all  State  legislation,  and  State  action  of  every  kind, 
which  impairs  the  privileges  and  immunities  of  citizens  of  the 
United  States,  or  which  injures  them  in  life,  liberty  or  property 
without  due  process  of  law,  or  which  denies  to  any  of  them  the 
equal  protection  of  the  laws.  It  not  only  does  this,  but,  in  order 
that  the  national  ^^^ll,  thus  declared,  may  not  be  a  mere  brutum 
fulmen,  the  last  section  of  the  amendment  invests  Congress  with 
power  to  enforce  it  by  appropriate  legislation.  To  enforce  what  ? 
To  enforce  the  prohibition.  To  adopt  appropriate  legislation  for 
correcting  the  effects  of  such  prohibited  State  laws  and  State  acts, 
and  thus  to  render  them  effectually  null,  void,  and  innocuous. 
This  is  the  legislative  power  conferred  upon  Congress,  and  this 
is  the  whole  of  it.  It  does  not  invest  Congress  wath  power  to  legis- 
late upon  subjects  which  are  within  the  domain  of  State  legislation; 
but  to  provide  modes  of  relief  against  State  legislation,  or  State 
action,  of  the  kind  referred  to.  It  does  not  authorize  Congress  to 
create  a  code  of  municipal  law  for  the  regulation  of  private  rights; 
but  to  provide  modes  of  redress  against  the  operation  of  State  laws, 
and  the  action  of  State  ofl&cers  executive  or  judicial,  when  these  are 
subversive  of  the  fundamental  rights  specified  in  the  amendment. 


CIVIL    RIGHTS    CASES.  637 

Positive  rights  and  privileges  are  undoubted!}'  secured  by  the 
Fourteenth  Amendment;  but  they  are  secured  by  way  of  prohibi- 
tion against  State  laws  and  State  proceedings  affecting  those  rights 
and  privileges,  and  by  power  given  to  Congress  to  legislate  for 
the  purpose  of  carrying  such  prohibition  into  effect:  and  such 
legislation  must  necessarily  be  predicated  upon  such  supposed 
State  laws  or  State  proceedings,  and  be  directed  to  the  correction 
of  their  operation  and  effect.  A  quite  full  chscussion  of  this  aspect 
of  the  amendment  may  be  found  in  United  States  v.  Cruikshank, 
92  U.  S.  542;  Virginia  v.  Rives,  100  U.  S.  313;  and  Ex  parte 
Virginia,  100  U.  S.  339. 

An  apt  illustration  of  this  distinction  may  be  found  in  some  of 
the  provisions  of  the  original  Constitution.  Take  the  subject  of 
contracts,  for  example.  The  Constitution  prohibited  the  States 
from  passing  any  law  impairing  the  obligation  of  contracts.  This 
did  not  give  to  Congress  power  to  provide  laws  for  the  general 
enforcement  of  contracts;  nor  power  to  invest  the  courts  of  the 
United  States  with  jurisdiction  over  contracts,  so  as  to  enable 
parties  to  sue  upon  them  in  those  courts.  It  did,  however,  give 
the  power  to  provide  remedies  by  which  the  impairment  of  con- 
tracts by  State  legislation  might  be  counteracted  and  corrected: 
and  this  power  was  exercised.  The  remedy  which  Congress  ac- 
tually provided  was  that  contained  in  the  25th  section  of  the 
Judiciary  Act  of  1789,  1  Stat.  85,  giving  to  the  Supreme  Court  of 
the  United  States  jurisdiction  by  writ  of  error  to  review  the  final 
decisions  of  State  courts  whenever  they  should  sustain  the  validity 
of  a  State  statute  or  authority  alleged  to  be  repugnant  to  the  Con- 
stitution or  laws  of  the  United  States.  .  .  .  Some  obnoxious 
State  law  passed,  or  that  might  be  passed,  is  necessary  to  be 
a.ssumed  in  order  to  lay  the  foundation  of  any  federal  remedy  in  the 
case;  and  for  the  very  sufficient  reason,  that  the  constitutional 
prohibition  is  against  State  laws  impairing  the  obligation  of 
contracts. 

And  so  in  the  present  ca.se,  until  some  State  law  has  been  passed, 
or  some  State  action  through  its  officers  or  agents  has  been  taken, 
adverse  to  the  rights  of  citizens  sought  to  be  protected  by  the 
Fourteenth  Amendment,  no  legislation  of  the  United  States  under 
said  amendment,  nor  any  proceeding  under  such  legislation,  can 
be  called  into  activity:  for  the  prohibitions  of  the  amendment  are 
against  State  laws  and  acts  done  under  State  authority.  .  .  . 
In  fine,  the  legislation  which  Congress  is  authorized  to  adopt  in 
this  behalf  is  not  general  legislation  upon  the  rights  of  the  citizen, 


538  RACE    DISCRIMINATION. 

but  corrective  legislation,  that  is,  such  as  may  be  necessary  and 
proper  for  counteracting  such  laws  as  the  States  may  adopt  or 
enforce,  antl  which,  by  the  amendment,  they  are  prohibited  from 
making  or  enforcing,  or  such  acts  and  proceedings  as  the  States 
may  commit  or  take,  and  which,  by  the  amendment,  they  are  pro- 
liibited  from  committing  or  taking.  It  is  not  necessary  for  us  to 
state,  if  we  could,  what  legislation  would  be  proper  for  Congress  to 
adopt.  It  is  sufficient  for  us  to  examine  whether  the  law  in  ques- 
tion is  of  that  character. 

An  inspection  of  the  law  shows  that  it  makes  no  reference  what- 
ever to  any  supposed  or  apprehended  violation  of  the  Fourteenth 
Amendment  on  the  part  of  the  States.  It  is  not  predicated  on  any 
such  view.  It  proceeds  ex  directo  to  declare  that  certain  acts 
committed  by  individuals  shall  be  deemed  offenses,  and  shall  be 
prosecuted  and  punished  by  proceedings  in  the  courts  of  the 
United  States.  It  does  not  profess  to  be  corrective  of  any  con- 
stitutional wrong  committed  by  the  States;  it  does  not  make  its 
operation  to  depend  upon  any  such  \vrong  committed.  It  applies 
equally  to  cases  arising  in  States  which  have  the  justest  laws 
respecting  the  personal  rights  of  citizens,  and  whose  authorities 
are  ever  ready  to  enforce  such  laws,  as  to  those  which  arise  in 
States  that  may  have  violated  the  prohibition  of  the  amendment. 
In  other  words,  it  steps  into  the  domain  of  local  jurisprudence,  and 
lays  down  rules  for  the  conduct  of  individuals  in  society  towards 
each  other,  and  imposes  sanctions  for  the  enforcement  of  those 
rules,  \vithout  referring  in  any  manner  to  any  supposed  action  of 
the  State  or  its  authorities.  .  .  . 

The  truth  is,  that  the  impUcation  of  a  power  to  legislate  in  this 
manner  is  based  upon  the  assumption  that  if  the  States  are 
forbidden  to  legislate  or  act  in  a  particular  way  on  a  particular  sub- 
ject, and  power  is  conferred  upon  Congress  to  enforce  the  prohibi- 
tion, this  gives  Congress  power  to  legislate  generally  upon  that 
subject,  and  not  merely  power  to  provide  modes  of  redress  against 
such  State  legislation  or  action.  The  assumption  is  certainly  un- 
sound. It  is  repugnant  to  the  Tenth  Amendment  of  the  Consti- 
tution, which  declares  that  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively  or  to  the  people. 

We  have  not  overlooked  the  fact  that  the  fourth  section  of  the 
act  now  under  consideration  has  been  held  by  this  court  to  be 
constitutional.  That  section  declares  "  that  no  citizen,  possessing 
all  other  qualifications  which  are  or  may  be  prescribed  by  law,  shall 


CIVIL    RIGHTS    CASES.  639 

be  disqualified  for  ser\dce  as  grand  or  petit  juror  in  any  court  of  the 
United  States,  or  of  any  State,  on  account  of  race,  color,  or  previous 
condition  of  servitude;  and  any  officer  or  other  person  charged 
with  any  duty  in  the  selection  or  summoning  of  jurors  who  shall 
exclude  or  fail  to  summon  any  citizen  for  the  cause  aforesaid,  shall, 
on  conviction  thereof,  be  deemed  guilty  of  a  misdemeanor,  and  be 
fined  not  more  than  five  thousand  dollars."  In  Ex  parte  Virginia, 
100  U.  S.  339,  it  was  held  that  an  indictment  against  a  State  officer 
under  this  section  for  excluding  persons  of  color  from  the  jury  Ifst  is 
sustainable.  But  a  moment's  attention  to  its  terms  will  show  that 
the  section  is  entirely  corrective  in  its  character.  Disqualifications 
for  service  on  juries  are  only  created  by  the  law,  and  the  first  part 
of  the  section  is  aimed  at  certain  disqualifying  laws,  namely,  those 
which  make  mere  race  or  color  a  disqualification;  and  the  second 
clause  is  directed  against  those  who,  assuming  to  use  the  authority 
of  the  State  government,  carry  into  efi"ect  such  a  rule  of  disqualifi- 
cation. In  the  Virginia  case,  the  State,  through  its  officer,  en- 
forced a  rule  of  disqualification  which  the  law  was  intended  to 
abrogate  and  counteract.  Whether  the  statute  book  of  the  State 
actually  laid  down  any  such  rule  of  disqualification,  or  not,  the 
State,  through  its  officer,  enforced  such  a  rule:  and  it  is  against 
such  State  action,  through  its  officers  and  agents,  that  the  last 
clause  of  the  section  is  directed.  This  aspect  of  the  law  was  deemed 
sufficient  to  divest  it  of  any  unconstitutional  character,  and  makes 
it  differ  A\ndely  from  the  first  and  second  sections  of  the  same  act 
which  we  are  now  considering.  .  .  . 

In  this  connection  it  is  proper  to  state  that  civil  rights,  such  as  are 
guaranteed  by  the  Constitution  against  State  aggression,  cannot 
be  impaired  by  the  wrongful  acts  of  individuals,  unsupported  by 
State  authority  in  the  shape  of  laws,  customs,  or  judicial  or  execu- 
tive proceedings.  The  wrongful  act  of  an  individual,  unsupported 
by  any  such  authority,  is  simply  a  private  wrong,  or  a  crime  of 
that  indi\'idual;  an  invasion  of  the  rights  of  the  injured  party,  it  is 
true,  whether  they  affect  his  person,  his  property,  or  his  reputation; 
but  if  not  sanctioned  in  some  way  by  the  State,  or  not  done  under 
State  authority,  his  rights  remain  in  full  force,  and  may  pre- 
sumably be  \4ndicated  by  resort  to  the  laws  of  the  State  for  redress. 
An  individual  carmot  deprive  a  man  of  his  right  to  vote,  to  hold 
property,  to  buy  and  sell,  to  sue  in  the  courts,  or  to  be  a  witness  or 
a  juror;  he  may,  by  force  or  fraud,  interfere  wath  the  enjoj^nent  of 
the  right  in  a  particular  case;  he  may  commit  an  assault  against 
the  person,  or  commit  murder,  or  use  ruffian  violence  at  the  polls, 


640  RACE   DISCRIMINATION. 

or  slander  the  good  name  of  a  fellow  citizen;  but,  unless  protected 
in  these  wrongful  acts  by  some  shield  of  State  law  or  State  author- 
ity, he  cannot  destroy  or  injure  the  right;  he  will  only  render 
himself  amenable  to  satisfaction  or  punishment ;  and  amenable 
therefor  to  the  laws  of  the  State  where  the  wrongful  acts  are  com- 
mitted. Hence,  in  all  those  cases  where  the  Constitution  seeks  to 
protect  the  rights  of  the  citizen  against  discriminative  and  unjust 
laws  of  the  State  by  prohibiting  such  laws,  it  is  not  individual 
offenses,  but  abrogation  and  denial  of  rigiits,  which  it  denounces, 
and  for  which  it  clothes  the  Congress  with  power  to  provide  a 
remedy.  This  abrogation  and  d(>nial  of  rights,  for  which  the  States 
alone  were  or  could  be  responsible,  was  the  great  seminal  and 
fundamental  wrong  which  was  intended  to  be  remedied.  And  the 
remedy  to  be  provided  must  necessarily  be  predicated  upon  that 
wrong.  It  must  assume  that  in  the  cases  provided  for,  the  evil  or 
wrong  actually  committed  rests  upon  some  State  law  or  State 
authority  for  its  excuse  and  perpetration. 

Of  course,  these  remarks  do  not  apply  to  those  cases  in  wiiich 
Congress  is  clothed  with  direct  and  plenary  powers  of  legislation 
over  the  whole  subject,  accompanied  with  an  express  or  implied 
denial  of  such  power  to  the  States,  as  in  the  regulation  of  commerce 
with  foreign  nations,  among  the  several  States,  and  with  the 
Indian  tribes,  the  coining  of  money,  the  establishment  of  post 
offices  and  post  roads,  the  declaring  of  war,  etc.  In  these  cases 
Congress  has  power  to  pass  laws  for  regulating  the  subjects  specified 
in  every  detail,  and  the  conduct  and  transactions  of  individuals  in 
respect  thereof.  But  where  a  subject  is  not  submitted  to  the  gen- 
eral legislative  power  of  Congress,  but  is  only  submitted  thereto 
for  the  purpose  of  rendering  effective  some  prohibition  against 
particular  State  legislation  or  State  action  in  reference  to  that 
subject,  the  power  given  is  limited  by  its  object,  and  any  legisla- 
tion by  Congress  in  the  matter  must  necessarily  be  corrective  in  its 
character,  adapted  to  counteract  and  redress  the  operation  of  such 
prohibited  State  laws  or  proceedings  of  State  officers. 

If  the  principles  of  interpretation  which  w^e  have  laid  down  are 
correct,  as  we  deem  them  to  be  (and  they  are  in  accord  with  the 
principles  laid  down  in  the  cases  before  referred  to,  as  well  as  in  the 
recent  case  of  United  States  v.  Harris,  106  U.  S.  629),  it  is  clear 
that  the  law  in  question  cannot  be  sustained  by  any  grant  of  legis- 
lative power  made  to  Congress  by  the  Fourteenth  Amendment. 
That  amendment  prohibits  the  States  from  denying  to  any  person 
the  equal  protection  of  the  laws,  and  declares  that  Congress  shall 


CIVIL    RIGHTS    CASES.  641 

have  power  to  enforce,  by  appropriate  legislation,  the  provisions 
of  the  amendment.  The  law  in  question,  without  anj^  reference 
to  adverse  State  legislation  on  the  subject,  declares  that  all  persons 
shall  be  entitled  to  equal  accommodations  and  privileges  of  inns, 
public  conveyances,  and  places  of  public  amusement,  and  imposes 
a  penalty  upon  any  individual  who  shall  deny  to  any  citizen  such 
equal  accommodations  and  privileges.  This  is  not  corrective 
legislation;  it  is  primary  and  direct ;  it  takes  immediate  and  abso- 
lute possession  of  the  subject  of  the  right  of  admission  to  inns, 
public  conveyances,  and  places  of  amusement.  .  .  . 

We  have  discussed  the  question  presented  by  the  law  on  the 
assumption  that  a  right  to  enjoy  equal  accommodation  and  privi- 
leges in  all  inns,  public  conveyances,  and  places  of  public  amuse- 
ment, is  one  of  the  essential  rights  of  the  citizen  which  no  State 
can  abridge  or  interfere  with.  Whether  it  is  such  a  right,  or  not, 
is  a  different  question  which,  in  the  view  we  have  taken  of  the  valid- 
ity of  the  law  on  the  ground  already  stated,  it  is  not  necessary  to 
examine. 

We  have  also  discussed  the  validity  of  the  law  in  reference  to 
cases  arising  in  the  States  only;  and  not  in  reference  to  cases  arising 
in  the  Territories  or  the  District  of  Columbia,  which  are  subject 
to  the  plenary  legislation  of  Congress  in  ever>^  branch  of  municipal 
regulation.  Whether  the  law  would  be  a  vahd  one  as  applied  to  the 
Territories  and  the  District  is  not  a  question  for  consideration  in 
the  cases  before  us:  they  all  being  cases  arising  within  the  limits  of 
States.  And  whether  Congress,  in  the  exercise  of  its  power  to 
regulate  commerce  amongst  the  several  States,  might  or  might  not 
pass  a  law  regulating  rights  in  public  conveyances  passing  from 
one  State  to  another,  is  also  a  question  which  is  not  now  before  us, 
as  the  sections  in  question  are  not  conceived  in  any  such  view. 

But  the  power  of  Congress  to  adopt  direct  and  primary,  as  dis- 
tinguished from  corrective  legislation,  on  the  subject  in  hand,  is 
sought,  in  the  second  place,  from  the  Thirteenth  Amendment, 
which  abolishes  slavery.  This  amendment  declares  "  that  neither 
slavery,  nor  involuntar\'  servitude,  except  as  a  punishment  for 
crime,  whereof  the  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States,  or  any  place  subject  to  their  juris- 
diction ";  and  it  gives  Congress  power  to  enforce  the  amendment 
by  appropriate  legislation. 

This  amendment,  as  well  as  the  Fourteenth,  is  undoubtedly  self- 
executing  without  any  ancillary  legislation,  so  far  as  its  terms  are 
apphcable  to  any  existing  state  of  circumstances.      By  its  own 


642  RACE   DISCRIMINATION. 

unaided  force  and  effect  it  abolished  slavery,  and  established 
universal  freedom.  Still,  legislation  may  be  necessary  and  proper 
to  meet  all  the  various  cases  and  circumstances  to  be  affected  by 
it,  and  to  prescribe  proper  modes  of  redress  for  its  violation  in 
letter  or  spirit.  And  such  legislation  may  be  primary  and  direct 
in  its  character;  for  the  amendment  is  not  a  mere  prohil)ition  of 
State  laws  establishing  or  upholding  slavery,  but  an  absolute 
declaration  that  slavery  or  involuntary  servitude  shall  not  exist 
in  any  part  of  the  United  States. 

It  is  true,  that  slavery  cannot  exist  without  law,  any  more  than 
property  in  lands  and  goods  can  exist  without  law:  and,  therefore, 
the  Thirteenth  Amendment  may  be  regarded  as  nullifying  all 
State  laws  which  establish  or  uphold  slavery.  But  it  has  a  reflex 
character  also,  establishing  and  decreeing  universal  civil  and  politi- 
cal freedom  throughout  the  United  States;  and  it  is  assumed,  that 
the  power  vested  in  Congress  to  enforce  the  article  by  appropriate 
legislation,  clothes  Congress  with  power  to  pass  all  laws  necessary 
and  proper  for  abolishing  all  badges  and  incidents  of  slavery  in  the 
United  States:  and  upon  this  assumption  it  is  claimed,  that  this  is 
sufficient  authority  for  declaring  by  law  that  all  persons  shall  have 
equal  accommodations  and  privileges  in  all  inns,  public  convey- 
ances, and  places  of  amusement;  the  argument  being,  that  the 
denial  of  such  equal  accommodations  and  privileges  is,  in  itself,  a 
subjection  to  a  species  of  servitude  within  the  meaning  of  the 
amendment.  Conceding  the  major  proposition  to  be  true,  that 
Congress  has  a  right  to  enact  all  necessary  and  proper  laws  for  the 
obliteration  and  prevention  of  slavery  with  all  its  badges  and 
incidents,  is  the  minor  proposition  also  true,  that  the  denial  to  any 
person  of  admission  to  the  accommodations  and  privileges  of  an 
inn,  a  public  conveyance,  or  a  theatre,  does  subject  that  person  to 
any  form  of  servitude,  or  tend  to  fasten  upon  him  any  badge  of 
slavery  ?  If  it  does  not,  then  power  to  pass  the  law  is  not  found 
in  the  Thirteenth  Amendment.  .  .  . 

It  may  be  that  by  the  Black  Code  (as  it  was  called),  in  the  times 
when  slavery  prevailed,  the  proprietors  of  inns  and  public  con- 
veyances were  forbidden  to  receive  persons  of  the  African  race, 
because  it  might  assist  slaves  to  escape  from  the  control  of  their 
masters.  This  was  merely  a  means  of  preventing  such  escapes, 
and  was  no  part  of  the  servitude  itself.  A  law  of  that  kind  could 
not  have  any  such  object  now,  however  justly  it  might  be  deemed 
an  invasion  of  the  party's  legal  right  as  a  citizen,  and  amenable  to 
the  prohibitions  of  the  Fourteenth  Amendment. 


CIVIL    RIGHTS    CASES.  643 

The  long  existence  of  African  slavery  in  this  country  gave  us 
very  distinct  notions  of  what  it  was,  and  what  were  its  necessary 
incidents.  Compulsory  service  of  the  slave  for  the  benefit  of  the 
master,  restraint  of  his  movements  except  by  the  master's  will, 
disability  to  hold  property,  to  make  contracts,  to  have  a  standing 
in  court,  to  be  a  witness  against  a  white  person,  and  such  like 
burdens  and  incapacities,  were  the  inseparable  incidents  of  the 
institution.  .  .  . 

We  must  not  forget  that  the  province  and  scope  of  the  Thir- 
teenth and  Fourteenth  Amendments  are  different;  the  former 
simply  abolished  slavery:  the  latter  prohibited  the  States  from 
abridging  the  privileges  or  immunities  of  citizens  of  the  United 
States;  from  depriving  them  of  life,  liberty,  or  property  without 
due  process  of  law,  and  from  denjdng  to  any  the  equal  protection  of 
the  laws.  The  amendments  are  different,  and  the  powers  of  Con- 
gress under  them  are  different.  .  .  . 

The  only  question  under  the  present  head,  therefore,  is,  whether 
the  refusal  to  any  persons  of  the  accommodations  of  an  inn,  or  a 
public  conveyance,  or  a  place  of  public  amusement,  by  an  indi- 
vidual, and  without  any  sanction  or  support  from  any  State  law 
or  regulation,  does  inflict  upon  such  persons  any  manner  of 
servitude,  or  form  of  slavery,  as  those  terms  are  understood  in  this 
country  ?  Many  wrongs  may  be  obnoxious  to  the  prohibitions 
of  the  Fourteenth  Amendment  which  are  not,  in  any  just  sense, 
incidents  or  elements  of  slavery.  Such,  for  example,  would  be  the 
taking  of  private  property  without  due  process  of  law;  or  allowing 
persons  who  have  committed  certain  crimes  (horse  stealing,  for 
example)  to  be  seized  and  hung  by  the  posse  comitatus  without 
regular  trial;  or  denying  to  any  person,  or  class  of  persons,  the 
right  to  pursue  any  peaceful  avocations  allowed  to  others.  What 
is  called  class  legislation  would  belong  to  this  category,  and  would 
be  obnoxious  to  the  prohibitions  of  the  Fourteenth  Amendment, 
but  would  not  necessarily  be  so  to  the  Thirteenth,  when  not 
involving  the  idea  of  any  subjection  of  one  man  to  another.  The 
Thirteenth  Amendment  has  respect,  not  to  distinctions  of  race, 
or  class,  or  color,  but  to  slavery.  .  .  . 

It  would  be  running  the  slavery  argument  into  the  ground 
to  make  it  apply  to  every  act  of  discrimination  which  a  person 
may  see  fit  to  make  as  to  the  guests  he  \v\\\  entertain,  or  as  to 
the  people  he  will  take  into  his  coach  or  cab  or  car,  or  admit  to  his 
concert  or  theatre,  or  deal  with  in  other  matters  of  intercourse  or 
business.  .  .  . 


644  RACE    DISCRIMINATION^. 

When  a  man  has  emerged  from  shivery,  and  by  the  aid  of  bene- 
ficent legislation  has  shaken  off  the  inseparable  concomitants  of 
that  state,  there  must  be  some  stage  in  the  progress  of  his  elevation 
when  he  takes  the  rank  of  a  mere  citizen,  and  ceases  to  be  the 
special  favorite  of  the  laws,  and  when  his  rights  as  a  citizen,  or  a 
man,  are  to  be  protected  in  the  ordinary  modes  by  which  other 
men's  rights  are  protected.  There  were  thousands  of  free  colored 
people  in  this  country  V)efore  the  abolition  of  slavery,  enjoying  all 
the  essential  rights  of  life,  liberty  and  property  the  same  as  white 
citizens :  yet  no  one,  at  that  time,  thought  that  it  was  any  invasion 
of  his  personal  status  as  a  freeman  because  he  was  not  admitted  to 
all  the  privileges  enjoyed  l)y  white  citizens,  or  because  he  was  sul)- 
jected  to  discriminations  in  the  enjoyment  of  accommodations  in 
inns,  public  conveyances  and  places  of  amusement.  Mere  dis- 
criminations on  account  of  race  or  color  were  not  regarded  as 
badges  of  slaver}-.  If,  since  that  time,  the  enjoyment  of  equal 
rights  in  all  these  respects  has  become  esta])lished  by  constitutional 
enactment,  it  is  not  by  force  of  the  Thirteenth  Amendment  (wiiicii 
merely  abolishes  slavery),  but  by  force  of  the  Fourteenth  and 
Fifteenth  Amendments.  .  .  . 

On  the  whole  we  are  of  opinion,  that  no  countenance  of  authority 
for  the  passage  of  the  law  in  question  can  be  found  in  either  the 
Thirteenth  or  Fourteenth  Amendment  of  the  Constitution;  and 
no  other  ground  of  authority  for  its  passage  being  suggested,  it 
must  necessarily  be  declared  void,  at  least  so  far  as  its  operation 
in  the  several  States  is  concerned. 

This  conclusion  disposes  of  the  cases  now  under  consideration. 
In  the  cases  of  the  United  States  v.  Michael  Ryan,  and  of  Richard 
A.  Robinson  and  Wife  v.  The  Memphis  &  Charleston  Railroad 
Company,  the  judgments  must  be  affirmed.  In  the  other  cases, 
the  answer  to  be  given  will  be  that  the  first  and  second  sections  of 
the  act  of  Congress  of  March  1st,  1875,  entitled  "  An  Act  to  protect 
all  citizens  in  their  civil  and  legal  rights,"  are  unconstitutional  and 
void,  and  that  judgment  should  be  rendered  upon  the  several 
indictments  in  those  cases  accordingly. 

And  it  is  so  ordered. 

Harlan,  J.,  dissenting.  ... 


PLESSY    V.    FERGUSON.  645 

PLESSY  V.   FERGUSON. 
Supreme  Court  of  the  United  States.     1896. 
[163  United  States,  537.]  ^ 

Error  to  the  Supreme  Court  of  Louisiana. 

Under  a  Louisiana  statute  (Acts,  1890,  No.  Ill,  p.  152)  enacting 
that  "  railway  companies  carrying  passengers  in  their  coaches  in 
this  State  shall  provide  equal  but  separate  acconomodations  for  the 
white  and  colored  races  "  and  that  "  any  passenger  insisting  on 
going  into  a  coach  or  compartment  to  which  by  race  he  does  not 
belong  shall  be  liable  to  a  fine  of  twenty-five  dollars  or  in  lieu 
thereof  to  imprisonment  for  a  period  of  not  more  than  twenty 
days,"  Plessy  was  committed  for  trial  to  the  criminal  District 
Court  for  the  Parish  of  Orleans.      He  interposed  a  plea  to  the 
information,  based  upon  the  unconstitutionality  of  the  statute; 
but  the  court  sustained  a  demurrer  to  the  plea.      Thereupon 
Plessy  petitioned  the  Supreme  Court  of  Louisiana  for  writs  of  pro- 
hibition and  certiorari,  against  the  judge  of  the  District  Court, 
setting  forth  that  the  petitioner  was  a  citizen  of  the  United  States 
and  a  resident  of  Louisiana,  that  he  was  of  mixed  descent,  seven- 
eighths  Caucasian  and  one-eighth  African  blood,  that  the  mixture 
of  colored  blood  was  not  discernible,  that  he  paid  for  a  first  class 
passage  on  the  East  Louisiana  Railway  —  a  line  with  both  its 
termini  in  Louisiana  —  from  New  Orleans  to  Covington,  that  he 
took  possession  of  a  vacant  seat  in  a  coach  where  passengers  of  the 
white  race  were  accommodated,  that  the  company  was  incorporated 
by  Louisiana  as  a  common  carrier,  that  the  petitioner  was  required 
by  the  conductor  to  occupy  another  seat  in  a  coach  assigned  to 
persons  not  of  the  white  race,  and  for  no  other  reason  than  that  the 
petitioner  was  of  the  colored  race,  that  upon  refusal  he  was  ejected 
from  the  coach,  that  unless  the  judge  of  the  District  Court  should 
be  enjoined  by  a  writ  of  prohibition  the  court  would  sentence  the 
petitioner,  and  that  no  appeal  lay  from  such  sentence,  the  peti- 
tioner being  without  remedy  except  by  ^vTits  of  prohibition  and 
certiorari.       Thereupon   the   respondent   was   ordered   to    show 
cause  why  a  writ  of  prohibition  should  not  issue  and  be  made  per- 
petual and  also  to  certify  the  record  of  the  proceedings;  and  after 
answer  the  Supreme  Court  of  Louisiana  held  the  statute  constitu- 
tional and  denied  the  relief  (45  La.  Ann.  80). 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


646  RACE   DISCRIMINATION. 

A.  W.  Tourgee  and  others,  for  plaintiff  in  error;  and  A.  P. 
Morse  and  others,  contra. 

Brown,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  constitutionality  of  this  act  is  attacked  upon  the  ground 
that  it  conflicts  both  with  the  Thirteenth  Aniendnu'nt  of  the  Con- 
stitution, abolishing  slavery,  and  the  Fourteenth  Amendment . 
which  prohibits  certain  restrictive  legislation  on  the  part  of  the 
States. 

1.  That  it  does  not  conflict  with  the  Thirteenth  .•Vmendment, 
which  abolished  slavery  and  involuntary  servitude,  except  as  a 
punishment  for  crime,  is  too  clear  for  argument.  Slavery  implies 
involuntary  servitude  —  a  state  of  bontlage;  the  ownership  of  man- 
kind as  a  chattel,  or  at  least  the  control  of  the  labor  and  services 
of  one  man  for  the  benefit  of  another,  and  the  absence  of  a  legal 
right  to  the  disposal  of  his  own  person,  property  and  services.  .  . 

A  statute  which  implies  merely  a  legal  distinction  between  the 
white  and  colored  races  —  a  distinction  which  is  founded  in  the 
color  of  the  two  races,  and  which  must  always  exist  so  long  as 
white  men  are  distinguished  from  the  other  race  by  color  —  has 
no  tendency  to  destroy  the  legal  equality  of  the  two  races,  or 
reestablish  a  state  of  involuntary  servitude.  Indeed,  we  do  not 
understand  that  the  Thirteenth  Amendment  is  strenuously  relied 
upon  by  the  plaintiff  in  error  in  this  connection. 

2.  By  the  Fourteenth  Amendment,  all  persons  born  or  natural- 
ized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  made  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside;  and  the  States  are  forbidden  from  making  or  enforcing 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States,  or  shall  deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law,  or  deny  to  any  person  within 
their  jurisdiction  the  equal  protection  of  the  laws. 

The  proper  construction  of  this  amendment  was  first  called  to 
the  attention  of  this  court  in  the  Slaughter-House Cases,  16  Wall.  3G, 
which  involved,  however,  not  a  question  of  race,  but  one  of  ex- 
clusive privileges.  The  case  did  not  call  for  any  expression  of 
opinion  as  to  the  exact  rights  it  was  intended  to  secure  to  the 
colored  race,  but  it  was  said  generally  that  its  main  purpose  was  to 
establish  the  citizenship  of  the  negro;  to  give  definitions  of  citizen- 
ship of  the  United  States  and  of  the  States,  and  to  protect  from  the 
hostile  legislation  of  the  States  the  privileges  and  immunities  of 
citizens  of  the  United  States,  as  distinguished  from  those  of  citizens 
of  the  States. 


PLESSY   V.    FERGUSON.  647 

The  object  of  the  amendment  was  undoubtedly  to  enforce  the 
absolute  eciuality  of  the  two  races  before  the  law,  but  in  the  nature 
of  things  it  could  not  have  been  intended  to  abolish  distinctions 
based  upon  color,  or  to  enforce  social,  as  distinguished  from  politi- 
cal equality,  or  a  commingling  of  the  two  races  upon  terms  unsat- 
isfactory to  either.  Laws  permitting,  and  even  requiring,  their 
separation  in  places  where  they  are  liable  to  be  brought  into  con- 
tact do  not  necessarily  imply  the  inferiority  of  either  race  to  the 
other,  and  have  been  generally,  if  not  universally,  recognized  as 
\\dthin  the  competency  of  the  state  legislatures  in  the  exercise  of 
their  police  power.  The  most  common  instance  of  this  is  connected 
with  the  establishment  of  separate  schools  for  white  and  colored 
children,  which  has  been  held  to  be  a  valid  exercise  of  the  legislative 
power  even  by  courts  of  States  where  the  political  rights  of  the 
colored  race  have  been  longest  and  most  earnestly  enforced. 

One  of  the  earliest  of  these  cases  is  that  of  Roberts  v.  City  of 
Boston,  5  Cush.  198,  in  which  the  Supreme  Judicial  Court  of 
Massachusetts  held  that  the  general  school  committee  of  Boston 
had  power  to  make  provision  for  the  instruction  of  colored  chil- 
dren in  separate  schools  established  exclusively  for  them,  and  to 
prohibit  their  attendance  upon  the  other  schools.  "  The  great 
principle,"  said  Chief  Justice  Shaw,  p.  20G,  "  advanced  by  the 
learned  and  eloquent  advocate  for  the  plaintiff  "  (Mr.  Charles 
Sumner),  "  is,  that  by  the  constitution  and  laws  of  Massachusetts, 
all  persons  \\ithout  distinction  of  age  or  sex,  birth  or  color,  origin 
or  condition,  are  equal  before  the  law.  .  .  .  But,  when  this  great 
principle  comes  to  be  applied  to  the  actual  and  various  conditions 
of  persons  in  society,  it  will  not  warrant  the  assertion,  that  men  and 
women  are  legally  clothed  with  the  same  civil  and  political  powers, 
and  that  children  and  adults  are  legally  to  have  the  same  functions 
and  be  subject  to  the  same  treatment;  but  only  that  the  rights  of 
all,  as  they  are  settled  and  regulated  by  law,  are  equally  entitled 
to  the  paternal  consideration  and  protection  of  the  law  for  their 
maintenance  and  security."  It  was  held  that  the  powers  of  the 
committee  extended  to  the  establishment  of  separate  schools  for 
children  of  different  ages,  sexes  and  colors,  and  that  they  might 
also  establish  special  schools  for  poor  and  neglected  children,  who 
have  become  too  old  to  attend  the  prunary  school,  and  yet  have  not 
acquired  the  rudiments  of  learning,  to  enable  them  to  enter  the 
ordinary  schools.  Similar  laws  have  been  enacted  by  Congress 
under  its  general  power  of  legislation  over  the  District  of  Colum- 
bia, Rev,  Stat.  D.  C.  §§  281,  282,  283,  310,  319,  as  well  as  by  the 


648  K\CE    DISCRIMINATION. 

legislatures  of  many  of  the  States,  and  have  been  generally,  if  not 
uniformly,  sustained  by  the  courts.  State  v.  McCaim,  21  Ohio 
St.  198;  Lehew  v.  Brummell,  15  S.  W.  Rep.  765;  Ward  /'.  Flood, 
48  California,  36;  Bertonneau  v.  School  Directors,  3  Woods,  177; 
People  V.  Gallagher,  93  N.  Y.  438;  Cory  v.  Carter,  48  Indiana, 
327;   Dawson  v.  Lee,  83  Kentucky,  49. ' 

Laws  forbidding  the  intermarriage  of  the  two  races  may  be  said 
in  a  technical  sense  to  interfere  with  the  freedom  of  contract,  and 
yet  have  been  universally'  recognized  as  within  the  police  power 
of  the  State.     State  v.  Gibson,  36  Indiana,  389. 

The  distinction  between  laws  interfering  with  the  political 
equality  of  the  negro  and  those  requiring  the  separation  of  the 
two  races  in  schools,  theatres,  and  railway  carriages  has  been 
frequently  drawn  by  this  court.  .  .  . 

Almost  directly  in  point  is  the  case  of  the  Louisville,  New 
Orleans  &c.  Railway  v.  Mississippi,  133  U.  S.  587.  .  .  . 

Similar  statutes  for  the  separation  of  the  two  races  upon  public 
conveyances  were  held  to  be  constitutional  in  West  Chester  &c. 
Railroad  v.  Miles,  55  Penn.  St.  209;  Day  v.  Owen,  5  Michigan,  520; 
Chicago  &c.  Railway  v.  Williams,  55  Illinois,  185;  Chesapeake  &c. 
Railroad  v.  Wells,  85  Tennessee,  613;  Memphis  &c.  Railroad  v. 
Benson,  85  Tennessee,  627;  The  Sue,  22  Fed.  Rep.  843;  Logwood 
V.  Memphis  &c.  Railroad,  23  Fed.  Rep.  318;  McGuinn  v.  Forbes, 
37  Fed.  Rep.  639;  People  v.  King,  18  N.  E.  Rep.  245;  Houck  v. 
South  Pac.  Railway,  38  Fed.  Rep.  226;  Heard  v.  Georgia  Railroad 
Co.,  3  Int.  Com.  Com'n,  111;  s.c,  1  ihicl.  428.  .  .  . 

It  is  claimed  by  the  plaintiff  in  error  that,  in  any  mixed  com- 
munity, the  reputation  of  belonging  to  the  dominant  race,  in  this 
instance  the  white  race,  is  property,  in  the  same  sense  that  a  right 
of  action,  or  of  inheritance,  is  property.  Conceding  this  is  to  be 
so,  for  the  purposes  of  this  case,  we  are  unable  to  see  how  this 
statute  deprives  him  of,  or  in  any  way  affects  his  right  to,  such 
property.  If  he  be  a  white  man  and  assigned  to  a  colored  coach, 
he  may  have  his  action  for  damages  against  the  company  for  being 
deprived  of  his  so  called  property.  Upon  the  other  hand,  if  he  be  a 
colored  man  and  be  so  assigned,  he  has  been  deprived  of  no  prop- 
erty, since  he  is  not  lawfully  entitled  to  the  reputation  of  being  a 
white  man. 

In  this  connection,  it  is  also  suggested  by  the  learned  counsel  for 
the  plaintiff  in  error  that  the  same  argument  that  vnW  justify  the 

1  See  Gumming  v.  Richmond  County  Board  of  Education,  175  U.  S.  528 
(1889).  —  Ed. 


PLESSY   V.    FERGUSON.  649 

state  legislature  in  requiring  railways  to  provide  separate  accom- 
modations for  the  two  races  will  also  authorize  them  to  require 
separate  cars  to  be  provided  for  people  whose  hair  is  of  a  certain 
color,  or  who  are  aliens,  or  who  belong  to  certain  nationalities,  or 
to  enact  laws  requiring  colored  people  {o  walk  upon  one  side  of  the 
street,  and  white  people  upon  the  other,  or  requiring  white  men's 
houses  to  be  painted  white,  and  colored  men's  black,  or  their 
vehicles  or  business  signs  to  be  of  different  colors,  upon  the  theory 
that  one  side  of  the  street  is  as  good  as  the  other,  or  that  a  house  or 
vehicle  of  one  color  is  as  good  as  one  of  another  color.  The  reply  to 
all  this  is  that  everj'  exercise  of  the  police  power  must  be  reason- 
able, and  extend  only  to  such  laws  as  are  enacted  in  good  faith  for 
the  promotion  for  the  public  good,  and  not  for  the  annoyance  or 
oppression  of  a  particular  class.  .  .  . 

So  far,  then,  as  a  conflict  with  the  Fourteenth  Amendment  is 
concerned,  the  case  reduces  itself  to  the  question  whether  the 
statute  of  Louisiana  is  a  reasonable  regulation,  and  with  respect  to 
this  there  must  necessarily  be  a  large  discretion  on  the  part  of  the 
legislature.  In  determining  the  question  of  reasonableness  it  is  at 
liberty  to  act  with  reference  to  the  established  usages,  customs  and 
traditions  of  the  people,  and  with  a  view  to  the  promotion  of  their 
comfort,  and  the  preservation  of  the  public  peace  and  good  order. 
Gauged  by  this  standard,  we  cannot  say  that  a  law  which  author- 
izes or  even  requires  the  separation  of  the  two  races  in  public 
conveyances  is  unreasonable,  or  more  obnoxious  to  the  Fourteenth 
Amendment  than  the  acts  of  Congress  requiring  separate  schools 
for  colored  children  in  the  District  of  Columbia,  the  constitution- 
ality of  which  does  not  seem  to.  have  been  questioned,  or  the 
corresponding  acts  of  state  legislatures. 

We  consider  the  underlying  fallacy  of  the  plaintiff's  argument  to 
consist  in  the  assumption  that  the  enforced  separation  of  the  two 
races  stamps  the  colored  race  with  a  badge  of  inferiority.  If  this 
be  so,  it  is  not  by  reason  of  anything  found  in  the  act,  but  solely 
because  the  colored  race  chooses  to  put  that  construction  upon  it. 
The  argument  necessarily  assumes  that  if,  as  has  been  more  than 
once  the  case,  and  is  not  unlikely  to  be  so  again,  the  colored  race 
should  become  the  dominant  power  in  the  state  legislature,  and 
should  enact  a  law  in  precisely  similar  terms,  it  would  thereby 
relegate  the  white  race  to  an  inferior  position.  We  imagine  that 
the  white  race,  at  least,  would  not  acquiesce  in  this  assumption. 
The  argument  also  assumes  that  social  prejudices  may  be  over- 
come by  legislation, 'and  that  equal  rights  carmot  be  secured  to  the 


650  RACE   DISCRIMINATION. 

negro  except  by  an  enforced  commingling  of  the  two  races.  We 
cannot  accept  this  proposition.  If  the  two  races  are  to  meet  upon 
terms  of  social  equality,  it  must  be  the  result  of  natural  affinities, 
a  mutual  appreciation  of  each  other's  merits  and  a  voluntary  con- 
sent of  individuals.  ,  .  .  JjCgislaticm  is  powerless  to  eradicate 
racial  instincts  or  to  abolish  distinctions  based  upon  physical  dif- 
ferences, and  the  attempt  to  do  so  can  only  result  in  accentuating 
the  difficulties  of  the  present  situation.  If  the  civil  and  political 
rights  of  both  races  be  equal  one  cannot  be  inferior  to  the  otlier 
civilly  or  politically.  If  one  race  be  inferior  to  the  other  socially, 
the  Constitution  of  the  United  States  cannot  put  them  upon  the 
same  plane. 

It  is  true  that  the  question  of  the  proportion  of  colored  blood 
necessary  to  constitute  a  colored  person,  as  distinguished  from  a 
white  person,  is  one  upon  which  there  is  a  difference  of  opinion  in 
the  different  States,  some  holding  that  any  visible  admixture  of 
black  blood  stamps  the  person  as  belonging  to  the  colored  race 
(State  V.  Chavers,  5  Jones,  [X.  C]  1,  p.  11);  others  that  it  depends 
upon  the  preponderance  of  blood  (Gray  v.  State,  4  Ohio,  354; 
Monroe  v.  Collins,  17  Ohio  St.  665);  and  still  others  that  the  pre- 
dominance of  white  blood  must  only  be  in  the  proportion  of  three 
fourths.  (People  v.  Dean,  14  ^Michigan,  406;  Jones  v.  Common- 
wealth, 80  Virginia,  538.)  But  these  are  questions  to  be  deter- 
mined under  the  laws  of  each  State  and  are  not  properly  put  in 
issue  in  this  case.  Under  the  allegations  of  his  petition  it  may 
undoubtedly  become  a  question  of  importance  whether,  under  the 
laws  of  Louisiana,  the  petitioner  belongs  to  the  white  or  colored 
race. 

The  judgment  of  the  court  below  is,  therefore. 

Affirmed.^ 

Harlan,  J.,  dissenting.  .  .  . 

Brewer,  J.,  did  not  hear  the  argument  or  participate  in  the 
decision  of  this  case. 

^  Other  cases  on  race  discrimination  are  Pace  v.  Alabama,  106  U.  S.  583 
(1882);  Beatty  v.  Benton,  135  U.  S.  244  (1890);  Berea  College  v.  Kentucky, 
211  U.  S.  45  (1908);  Marbles  v.  Crecy,  215  U.  S.  63  (1909).  —  Ed. 


BARTEMEYER   V.    IOWA.  651 

Section  IV. 

The  Fourteenth  Amendment  and  Police  Power. 

BARTEMEYER   v.   IOWA. 

Supreme  Court  of  the  United  States.     1874. 

[18  Wallace,  129.) 

Error  to  the  Supreme  Court  of  Iowa. 

On  appeal  from  an  acquittal  by  a  justice  of  the  peace,  Barte- 
meyer  was  tried  in  a  circuit  court  of  the  State  of  Iowa  under  an 
information  charging  him  with  scUing  intoxicating  Uquors  in  1870. 
His  plea  to  the  information  admitted  the  sale  of  a  glass  of  whiskey, 
but  said:  "  Defendant  alleges  that  he  committed  no  crime  knovm 
to  the  law,  ...  for  the  reason  that  he  .  .  .  was  the  lawful 
owner  ...  of  said  ...  one  glass  of  intoxicating  liquor  .  .  . 
prior  to  the  day  on  which  the  law  was  passed  under  which  these 
proceedings  are  instituted  and  prosecuted,  .  .  .  being  chapter  64 
of  the  revision  of  1860."  Without  any  evidence  and  with  waiver 
of  a  jury,  the  case  was  submitted  to  the  court.  A  judgment  of 
guilty  was  rendered;  and  the  defendant  was  sentenced  to  a  fine 
of  twenty  dollars  and  costs.  A  bill  of  exceptions  was  taken;  and 
the  Supreme  Court  of  Iowa  affirmed  the  judgment,  the  main 
ground  rehcd  upon  for  a  reversal  in  that  court  having  been  that  the 
statute  was  in  violation  of  the  Constitution  of  the  United  States. 

W.  T.  Dittoe,  for  plaintiff  in  error;  and  H.  O'Connor,  Attorney 
General  of  Iowa,  contra. 

Miller,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  case  has  been  submitted  to  us  on  printed  argument.  That 
on  the  part  of  the  plaintiff  in  error  has  taken  a  very  wide  range,  and 
is  largely  composed  of  the  arguments  famiUar  to  all,  against  the 
right  of  the  States  to  regulate  traffic  in  intoxicating  Uquors.  So 
far  as  this  argument  deals  with  the  mere  question  of  regulating 
this  traffic,  or  even  its  total  prohibition,  as  it  may  have  been 
affected  by  anj-thing  in  the  federal  Constitution  prior  to  the  recent 
amendments  of  that  instrument,  we  do  not  propose  to  enter  into 
a  discussion.  Up  to  that  time  it  had  been  considered  as  falUng 
within  the  police  regulations  of  the  States,  left  to  their  judgment, 
and  subject  to  no  other  hmitations  than  such  as  were  imposed  by 
the  State  constitution,  or  by  the  general  principles  supposed  to 
limit  all  legislative  power.  It  has  never  been  seriously  contended 
that  such  laws  raised  any  question  growing  out  of  the  Constitution 
of  the  United  States. 


652         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

But  the  case  before  us  is  supposed  by  counsel  of  the  plaintiff  in 
error  to  present  a  violation  of  the  fourteenth  amendment  of  the 
Constitution,  on  the  ground  that  the  act  of  the  Iowa  legislature 
is  a  violation  of  the  privileges  and  immunities  of  citizens  of  the 
United  States  which  that  amendment  declares  shall  not  be  abridged 
by  the  States;  and  that  in  his  case  it  deprives  him  of  his  property 
without  due  process  of  law. 

As  regards  both  branches  of  this  defense,  it  is  to  be  observed 
that  the  statute  of  Iowa,  which  is  complained  of,  was  in  existence 
long  before  the  amendment  of  the  federal  Constitution,  wliich  is 
thus  invoked  to  render  it  invalid.  Whatever  were  the  privileges 
and  immunities  of  Mr.  Bartemcyer,  as  they  stood  before  that 
amendment,  under  the  Iowa  statute,  they  have  certainly  not 
been  abridged  by  any  action  of  the  State  legislature  since  that 
amendment  became  a  part  of  the  Constitution.  And  unless  that 
amendment  confers  privileges  and  immunities  which  he  did  not  pre- 
viously possess,  the  argument  fails.  But  the  most  liberal  advocate 
of  the  rights  conferred  by  that  amendment  have  contended  for 
nothing  more  than  that  the  rights  of  the  citizen  previously  existing, 
and  dependent  wholly  on  State  laws  for  their  recognition,  are  now 
placed  under  the  protection  of  the  federal  government,  and  are 
secured  by  the  federal  Constitution.  The  weight  of  authority  is 
overwhelming  that  no  such  immunity  has  heretofore  existed  as 
would  prevent  State  legislatures  from  regulating  and  even  pro- 
hibiting the  traffic  in  intoxicating  drinks,  with  a  solitary  exception. 
That  exception  is  the  cavse  of  a  law  operating  so  rigidly  on  property 
in  existence  at  the  time  of  its  passage,  absolutely  prohibiting  its 
sale,  as  to  amount  to  depriving  the  owner  of  his  property.  A 
single  case,  that  of  Wynehamer  v.  The  People,  3  Kernan,  486,  has 
held  that  as  to  such  property  the  statute  would  be  void  for  that 
reason.  But  no  case  has  held  that  such  a  law  was  void  as  violating 
the  privileges  or  immunities  of  citizens  of  a  State  or  of  the  United 
States.  If,  however,  such  a  proposition  is  seriously  urged,  we  think 
that  the  right  to  sell  intoxicating  hquors,  so  far  as  such  a  right 
exists,  is  not  one  of  the  rights  growing  out  of  citizenship  of  the 
United  States,  and  in  this  regard  the  case  falls  within  the  prin- 
ciples laid  down  by  this  court  in  the  Slaughter-House  Cases,  16 
Wallace,  36. 

But  if  it  were  true,  and  it  was  fairly  presented  to  us,  that  the 
defendant  w-as  the  owner  of  the  glass  of  intoxicating  liquor  which 
he  sold  to  Hickey,  at  the  time  that  the  State  of  Iowa  first  imposed 
an  absolute  prohibition  on  the  sale  of  such  hquors,  then  we  concede 


BARTE.MEYER    V.    IOWA. 


653 


that  two  very  grave  questions  would  arise,  namely:  1.  Whether 
this  would  be  a  statute  depriving  him  of  his  property  without  due 
process  of  law;  and  2.  whether  if  it  were  so,  it  would  be  so 
far  a  violation  of  the  fourteenth  amendment  in  that  regard  as 
would  call  for  judicial  action  by  this  court. 

Both  of  these  questions,  whenever  they  may  be  presented  to  us, 
are  of  an  importance  to  require  the  most  careful  and  serious  con- 
sideration. They  are  not  to  be  lightly  treated,  nor  are  we  author- 
ized to  make  any  advances  to  meet  them  until  we  are  required  to  do 
so  by  the  duties  of  our  position. 

In  the  case  before  us,  the  Supreme  Court  of  Iowa,  whose  judg- 
ment we  are  called  on  to  review,  did  not  consider  it.  They  said 
that  the  record  did  not  present  it. 

It  is  true  the  bill  of  exceptions,  as  it  seems  to  us,  does  show  that 
the  defendant's  plea  was  all  the  e\adence  given,  but  this  does  not 
remove  the  difficulty  in  our  minds.  The  plea  states  that  the 
defendant  was  the  owner  of  the  glass  of  hquor  sold  prior  to  the 
passage  of  the  law'  under  which  the  proceedings  against  him  were 
instituted,  being  chapter  sixty-four  of  the  revision  of  1860. 

If  this  is  to  be  treated  as  an  allegation  that  the  defendant  was  the 
owner  of  that  glass  of  hquor  prior  to  1860,  it  is  insufficient,  because 
the  revision  of  the  laws  of  Iowa  of  1860  was  not  an  enactment  of 
new  laws,  but  a  revision  of  those  previously  enacted;  and  there  has 
been  in  existence  in  the  State  of  Iowa,  ever  since  the  code  of  1851, 
a  law  strictly  prohibiting  the  sale  of  such  liquors;  the  act  in  all 
essential  particulars  under  which  the  defendant  was  prosecuted, 
amended  in  some  immaterial  points.  If  it  is  supposed  that  the 
averment  is  helped  by  the  statement  that  he  owned  the  liquor 
before  the  law  was  passed,  the  answer  is  that  this  is  a  mere  con- 
clusion of  law.  He  should  have  stated  when  he  became  the  owner 
of  the  Uquor,  or  at  least  have  fixed  a  date  when  he  did  own  it,  and 
leave  the  court  to  decide  when  the  law  took  effect,  and  apply  it  to 
his  case.  But  the  plea  itself  is  merely  argumentative,  and  does  not 
state  the  ownership  as  a  fact,  but  says  he  is  not  guilty  of  any 
offense,  because  of  such  fact. 

If  it  be  said  that  this  manner  of  looking  at  the  case  is  narrow  and 
technical,  we  answer  that  the  record  affords  to  us  on  its  face  the 
strongest  reason  to  believe  that  it  has  been  prepared  from  the 
begiiming,  for  the  purpose  of  obtaining  the  opinion  of  this  court  on 
important  constitutional  questions  without  the  actual  existence  of 
the  facts  on  which  such  questions  can  alone  arise. 


654         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

It  is  absurd  to  suppose  that  the  plaintiff,  an  ordinary  retailer  of 
drinks,  could  have  proved,  if  required,  that  he  had  owned  that 
particular  glass  of  whiskey  prior  to  the  prohibitory  liquor  law  of 
1851.  .  .  . 

Bradley,  J.  .  .  .  Whilst  I  concur  in  the  conclusion  to  which 
the  court  has  arrived  in  this  case,  I  think  it  proper  to  state  briefly 
and  exphcitly  the  grounds  on  which  I  distinguish  it  from  the 
Slaughter-House  Cases,  which  were  arguetl  at  the  same  time.  I 
prefer  to  do  this  in  order  that  there  may  be  no  misapprehension  of 
the  views  which  I  entertain  in  regard  to  the  appUcation  of  the 
fourteenth  amendment  to  the  Constitution.  .  .  . 

Whether  the  plea  meant  to  assert  that  the  defendant  owned  the 
liquor  prior  to  the  passage  of  the  original  law,  or  only  prior  to  its 
re-enactment  in  the  revision,  is  doubtful,  and,  being  doubtful,  it 
must  be  interpreted  most  strongly  against  the  pleader.  It  amounts, 
therefore,  only  to  an  allegation  that  the  defendant  became  owner 
of  the  liquor  at  a  time  when  it  was  unlawful  to  sell  it  in  Iowa. 
The  law,  therefore,  was  not  in  this  case  an  invasion  of  property 
existing  at  the  date  of  its  passage,  and  the  cjuestion  of  depriving  a 
person  of  property  without  due  process  of  law  does  not  arise.  No 
one  has  ever  doubted  that  a  legislature  may  prohibit  the  vending 
of  articles  deemed  injurious  to  the  safety  of  society,  provided  it 
does  not  interfere  with  vested  rights  of  property.  When  such 
rights  stanctin  the  way  of  the  public  good  they  can  be  removed  by 
awarding  compensation  to  the  owner.  When  they  are  not  in 
question,  the  claim  of  a  right  to  sell  a  prohibited  article  can  never 
be  deemed  one  of  the  privileges  and  immunities  of  the  citizen.  It 
is  toto  cobIo  different  from  the  right  not  to  be  deprived  of  property 
without  due  process  of  law,  or  the  right  to  pursue  such  lawful  avo- 
cation as  a  man  chooses  to  adopt,  unrestricted  by  tyrannical  and 
corrupt  monopoUes.  By  that  portion  of  the  fourteenth  amendment 
by  which  no  State  may  make  or  enforce  any  law  which  shall  abridge 
the  privileges  and  immunities  of  citizens  of  the  United  States,  or 
take  life,  liberty,  or  property,  without  due  process  of  law,  it  has 
now  become  th?  fundamental  law  of  this  country  that  life,  liberty, 
and  property  (which  include  "  the  pursuit  of  happiness  ")  are 
sacred  rights,  which  the  Constitution  of  the  United  States  guaran- 
tees to  its  humblest  citizen  against  oppressive  legislation,  whether 
national  or  local,  so  that  he  cannot  be  deprived  of  them  without  due 
process  of  law.  The  monopoly  created  by  the  legislature  of  Louis- 
iana, which  was  under  consideration  in  the  Slaughter-House  Cases, 
was,  in  my  judgment,  legislation  of  this  sort  and  obnoxious  to  this 


BARTEMEYER   V.   IOWA.  655 

objection.  But  p6lice  regulations,  intended  for  the  preservation 
of  the  pubhc  health  and  the  pubhc  order,  are  of  an  entirely  different 
character.  So  much  of  the  Louisiana  law  as  partook  of  this 
character  was  never  objected  to.  It  was  the  unconscionable 
monopoly,  of  which  the  police  regulation  was  a  mere  pretext,  that 
was  deemed  by  the  dissentmg  members  of  the  court  an  invasion 
of  the  right  of  the  citizen  to  pursue  his  lawful  calling.  A  claim  of 
right  to  pursue  an  unlawful  calling  stands  on  very  different  grounds, 
occupying  the  same  platform  as  does  a  claim  of  right  to  disregard 
license  laws  and  to  usurp  public  franchises.  It  is  greatly  to  be 
regretted,  as  it  seems  to  me,  that  this  distinction  was  lost  sight  of 
(as  I  think  it  was)  in  the  decision  of  the  court  referred  to. 

I  am  authorized  to  say  that  Justices  Swayne  and  Field  concur 
in  this  opinion. 

Field,  J.  .  .  .  I  have  no  doubt  of  the  power  of  the  State  to  regu- 
late the  sale  of  intoxicating  liquors  when  such  regulation  does  not 
amount  to  the  destruction  of  the  right  of  property  in  them.  The 
right  of  property  in  an  article  involves  the  power  to  sell  and  dispose 
of  such  article  as  well  as  to  use  and  enjoy  it.  Any  act  which 
declares  that  the  owner  shall  neither  sell  it  nor  dispose  of  it,  nor 
use  and  enjoy  it,  confiscates  it,  depriving  him  of  his  property 
without  due  process  of  law.  Against  such  arbitrary  legislation  by 
any  State  the  fourteenth  amendment  affords  protection.  But  the 
prohibition  of  sale  in  any  way,  or  for  any  use,  is  quite  a  different 
thing  from  a  regulation  of  the  sale  or  use  so  as  to  protect  the 
health  and  morals  of  the  community.  All  property,  even  the  most 
harmless  in  its  nature,  is  equally  subject  to  the  power  of  the  State 
in  this  respect  with  the  most  noxious. 

Xo  one  has  ever  pretended,  that  I  am  aware  of,  that  the  four- 
teenth amendment  interferes  in  any  respect  with  the  pohce  power  of 
the  State.  Certainly  no  one  who  desires  to  give  to  that  amend- 
ment its  legitimate  operation  has  ever  asserted  for  it  any  such 
effect.  It  was  not  adopted  for  any  such  purpose.  The  judges 
who  dissented  from  the  opinion  of  the  majorit}'  of  the  court  in  the 
Slaughter-House  Cases  never  contended  for  any  such  position.  .  .  . 

It  was  because  the  act  of  Louisiana  transcended  the  limits  of 
police  regulation,  and  asserted  a  power  in  the  State  to  farm  out  the 
ordinary^  avocations  of  life,  that  dissent  was  made  to  the  judgment 
of  the  court  sustaining  the  validity  of  the  act. 

It  was  believed  that  the  fourteenth  amendment  had  taken 
away  the  power  of  the  State  to  parcel  out  to  favored  citizens  the 
ordinary  trades  and  caUings  of  Ufe,  to  give  to  A  the  sole  right  to 


656         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

bake  bread;  to  B  the  sole  right  to  make  hats;  to  C  the  sole  right 
to  sow  grain  or  plough  the  fields;  and  thus  at  discretion,  to  grant 
to  some  the  means  of  Uvelihood  antl  withhold  it  from  others.  It 
was  supposed  that  there  were  no  privileges  or  immunities  of  citizens 
more  sacred  than  those  which  are  involved  in  the  right  to  "  the  pur- 
suit of  happiness,"  which  is  usually  classed  with  life  and  liberty; 
and  that  in  the  pursuit  of  happiness,  since  that  amendment  became 
part  of  the  fundamental  law,  every  one  was  free  to  follow  any  law- 
ful employment  without  other  restraint  than  such  as  equally 
affects  all  other  persons.  .  .  . 

This  case  was  considered  by  the  court  in  connection  with  the 
Slaughter-Houses  Cases,  although  its  decision  has  been  so  long 
delayed.  I  have  felt,  therefore,  called  upon  to  point  out  the  dis- 
tinction between  this  case  and  those  cases,  and  as  there  has  been 
some  apparent  misapprehension  of  the  views  of  the  dissenting 
judges,  to  restate  the  grounds  of  their  dissent.  .  .  . 

Judgment  affirmed. 


BARBIER  V.   CONNOLLY. 
Supreme  Court  of  the  United  States.     1885. 

[113  United  States,  27.]  ^ 

Error  to  the  Superior  Court  of  the  City  and  County  of  San 
Francisco,  California. 

Barbier  was  convicted  in  the  Police  Judge's  Court  of  the  City 
and  County  of  San  Francisco  of  the  misdemeanor  of  washing  and 
ironing  clothes  in  a  public  laundry,  between  ten  o'clock  at  night  and 
six  o'clock  in  the  morning,  within  a  certain  neighborhood,  in  dis- 
obedience to  an  ordinance  adopted  by  the  Board  of  Supervisors  of 
the  City  and  County  of  San  Francisco.  He  was  sentenced  to 
imprisonment  for  five  days,  and  was  committed  to  the  custody  of 
the  sheriff.  He  obtained  a  writ  of  habeas  corpus  from  the  Superior 
Court,  and  moved  for  discharge  on  the  ground  that  the  ordinance 
conflicted  with  the  constitution  of  California  and  the  Fourteenth 
Amendment,  specifications  being  that  the  ordinance  discriminated 
between  laborers  in  the  laundry  business  and  those  in  other  busi- 

1  The  statement  has  been  rewTitten.  —  Ed. 


BARBIER    V.    CONNOLLY, 


65^ 


ness,  and  between  laborers  beyond  the  prescribed  limits  and  those 
within  them,  and  deprived  the  petitioner  of  the  right  to  labor  and 
consequently  of  the  right  to  acquire  property,  and  was  unreason- 
able in  its  requirements.     That  court  dismissed  the  writ. 

A.  C.  Searle,  and  othere,  for  plaintiff  in  error;   and  no  appear- 
ance for  defendant  in  error. 

Field,  J.,  dehvered  the  opinion  of  the  court.  .  .  •. 
In  this  case  we  can  only  consider  whether  the  fourth  section  of 
the  ordinance  of  the  city  and  county  of  San  Francisco  is  in  con- 
flict \nih.  the  Constitution  or  laws  of  the  United  States.  We 
cannot  pass  upon  the  conformity  of  that  section  with  the  require- 
ments of  the  constitution  of  the  State.  Our  juriscUction  is  con- 
fined to  a  consideration  of  the  federal  question  involved,  which 
arises  upon  an  alleged  conflict  of  the  fourth  section  m  question  with 
the  first  section  of  the  Fourteenth  Amendment  of  the  Constitution 
of  the  United  States.  No  other  part  of  the  amendment  has  any 
possible  application. 

That  fourth  section,  so  far  as  it  is  involved  in  the  case  before  the 
police  judge,  was  simply  a  prohibition  to  carry  on  the  washing  and 
ironing  of  clothes  in  pubUc  laundries  and  washhouses,  withm  certain 
prescribed  limits  of  the  city  and  county,  from  ten  o'clock  at  night 
until  six  o'clock  on  the  morning  of  the  following  day.     The  pro- 
hilntion  against  labor  on  Sunday  is  not  involved.     The  pro\dsion 
is  purely  a  poUce  regulation  within  the  competency  of  any  munici- 
paUty  possessed  of  the  ordinary  powers  belonging  to' such  bodies. 
And  it  would  be  an  extraordinary  usurpation  of  the  authority  of  a 
municipahty,  if  a  federal  tribunal  should  undertake  to  supei-vise 
such  regulations.     It  may  be  a  necessary  measure  of  precaution  in  a 
city  composed  largely  of  wooden  buildings  Uke  San  Francisco, 
that  occupations,  in  which   fires  arc  constantly  required,  should 
cease  after  certain  hours  at  night  until  the  following  morning;  and 
of  the  necessity  of  such  regulations  the  municipal  bodies  are  the 
exclusive  judges;    at  least  any  correction  of  their  action  in  such 
matters  can  come  only  from  State  legislation  or  State  tribunals. 
The  same  municipal  authority  which  directs  the  cessation  of  labor 
must  necessarily  prescribe  the  Umits  within  which  it  shall  be 
enforced,  as  it  does  the  limits  in  a  city  within  which  wooden 
buildings  cannot  be  constructed.     There  is  no  imddious  discrim- 
ination agamst  any  one  within  the  prescribed  limits  by  such  regu- 
lations.    There  is  none  in  the  regulation  under  consideration.     The 
specification  of   the  limits  within  which  the  business  cannot  be 
carried  on  without  the  certificates  of  the  health  officer  and  Board 


658         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

of  Fire  Wardens  is  merely  a  designation  of  the  portion  of  the  city 
in  which  the  precautionary  measures  against  fire  and  to  secure 
proper  drainage  must  be  taken  for  the  pubhc  heaUh  and  safety. 
It  is  not  legislation  discriminating  against  any  one.  All  persons 
engaged  in  the  same  business  within  it  are  treatetl  alike;  are  sub- 
ject to  the  same  restrictions  and  are  entitled  to  the  same  privileges 
under  similar  conditions. 

The  Fourteenth  Amendment,  in  declaring  that  no  State  "  shall 
deprive  any  person  of  hfe,  hberty,  or  property  without  due  process 
of  law,  jior  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws,"  undoubtedly  intended  not  only  that  there 
should  be  no  arbitrary  deprivation  of  hfe  or  hberty,  or  arbitrary 
spohation  of  property,  but  that  equal  protection  and  security 
should  be  given  to  all  under  hke  circumstances  in  the  enjoyment  of 
their  personal  and  civil  rights;  that  all  persons  should  be  equally 
entitled  to  pursue  their  happiness  and  acquire  and  enjoy  property; 
that  they  should  have  like  access  to  the  courts  of  the  country  for 
the  protection  of  their  persons  and  property,  the  prevention  and 
redress  of  wrongs,  and  the  enforcement  of  contracts;  that  no 
impediment  should  be  interposed  to  the  pursuits  of  any  one  except 
as  applied  to  the  same  pursuits  by  others  under  hke  circumstances; 
that  no  greater  burdens  should  be  laid  upon  one  than  are  laid  upon 
others  in  the  same  calhng  and  condition,  and  that  in  the  admin- 
istration of  criminal  justice  no  different  or  higher  punishment 
should  be  imposed  upon  one  than  such  as  is  prescribed  to  all  for 
like  offenses.  But  neither  the  amendment  —  broad  and  compre- 
hensive as  it  is  —  nor  any  other  amendment,  was  designed  to 
interfere  with  the  power  of  the  State,  sometimes  termed  its  poUce 
power,  to  prescribe  regulations  to  promote  the  health,  peace, 
morals,  education,  and  good  order  of  the  people,  and  to  legislate 
so  as  to  increase  the  industries  of  the  State,  develop  its  resources, 
and  add  to  its  wealth  and  prosperity.  From  the  very  necessities 
of  society,  legislation  of  a  special  character,  having  these  objects  in 
view,  must  often  be  had  in  certain  districts,  such  as  for  draining 
marshes  and  irrigating  arid  plains.  Special  burdens  are  often 
necessary  for  general  benefits  —  for  supplying  water,  preventing 
fires,  hghting  districts,  cleaning  streets,  opening  parks,  and  many 
other  objects.  Regulations  for  these  purposes  may  press  with 
more  or  less  weight  upon  one  than  upon  another,  but  they  are 
designed,  not  to  impose  unequal  or  unnecessary  restrictions  upon 
anj^  one,  but  to  promote,  with  as  little  individual  inconvenience  as 
possible,  the  general  good.     Though,  in  many  respects,  necessarily 


TICK    WO    V.    HOPKINS.  659 

special  in  their  character,  they  do  not  furnish  just  ground  of  com- 
plaint if  they  operate  aUke  upon  all  persons  and  property  under  the 
same  circumstances  and  conditions.  Class  legislation,  discriminat- 
ing against  some  and  favoring  others,  is  prohibited,  but  legislation 
which,  in  carrjdng  out  a  pubUc  purpose,  is  limited  in  its  apphcation, 
if  within  the  sphere  of  its  operation  it  affects  alike  all  persons 
similarly  situated,  is  not  within  the  amendment. 

In  the  execution  of  admitted  powers  unnecessary  proceedings  are 
often  required  which  are  cumbersome,  dilatory  and  expensive,  yet, 
if  no  discrimination  against  any  one  be  made  and  no  substantial 
right  be  impaired  by  them,  they  are  not  obnoxious  to  any  constitu- 
tional objection.  The  inconveniences  arising  in  the  administration 
of  the  laws  from  this  cause  are  matters  entirely  for  the  considera- 
tion of  the  State;  they  can  be  remedied  only  by  the  State.  In  the 
case  before  us  the  provisions  requiring  certificates  from  the  health 
officer  and  the  Board  of  Fire  Wardens  may,  in  some  in.stances,  be 
unnecessarj%  and  the  changes  to  be  made  to  meet  the  conditions 
prescribed  may  be  burdensome,  but,  as  we  have  said,  this  is  a 
matter  for  the  determination  of  the  municipahty  in  the  execution 
of  its  police  powers,  and  not  a  violation  of  any  substantial  right  of 
the  individual. 

Judgment  affirmed. 


YICK   WO   V.   HOPKINS. 
Supreme  Court  of  the  United  States.     1886. 

[118  United  States,  356.]  ^ 

Error  to  the  Supreme  Court  of  California.  With  this  case  was 
argued  Wo  Lee  v.  Hopkins,  on  appeal  from  the  Circuit  Court  of  the 
United  States  for  the  District  of  Cahfornia. 

Ordinances  of  the  Board  of  Supervisors  of  the  County  of  San 
Francisco,  passed  in  1880,  made  it  unlawful,  and  punishable  as  a 
misdemeanor  with  a  fine  of  not  more  than  -SIOOO  or  imprisonment 
for  not  more  than  six  months  or  both,  to  estabUsh  or  maintain  a 
laundry  within  the  city  and  county  of  San  Francisco  without  first 
obtaining  the  consent  of  the  board  of  supervisors,  "  except  the 
same  be  located  in  a  building  constructed  either  of  brick  or  stone," 

1  The  statement  has  been  rewritten.  —  Ed. 


060         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

or  to  erect  or  maintain  any  scaffolding  upon  the  roof  of  any  build- 
ing within  these  hniits  without  first  obtaining  the  written  i)erniis- 
sion  of  the  same  board.  In  1885,  by  the  Police  Judge's  Court  No.  2 
of  San  Francisco  Yick  Wo  was  found  guilty  of  maintaining  a 
laundry  within  the  prohibited  limits  and  without  the  prescril)ed 
consent,  and  was  adjudged  to  pay  a  fine  of  SIO  and  in  default  of 
payment  to  be  imprisoned  at  the  rate  of  one  day  for  each  dollar  of 
fine.  Upon  commitment  to  jail,  Yick  Wo  petitioned  the  Supreme 
Court  of  Cahfornia  for  a  writ  of  habeas  corpus.  The  sheriff  made 
return  in  accordance  with  the  facts  already  stated.  It  was  ad- 
mitted that  Yick  Wo  was  a  native  of  China,  came  to  California  in 
1861,  was  still  a  Chinese  subject,  had  been  engaged  in  the  laundry 
business  in  the  same  premises  for  twenty-two  years,  had  from  the 
fire  wardens  a  license  specifj-ing  that  the  premises  and  appliances 
were  in  good  condition  antl  their  use  not  dangerous  to  surround- 
ing property,  and  had  from  the  health  officer  a  certificate  that  all 
proper  arrangements  for  carrying  on  a  laundry  without  injuiy  to 
the  sanitary  condition  of  the  neighborhood  had  been  complied 
with.  It  was  admitted  that  when  the  ordinances  were  passed 
there  were  about  320  laundries,  of  which  about  240  were  owned  and 
conducted  by  subjects  of  China,  that  about  310  of  the  laundries 
were  constructed  of  wood,  and  that  the  capital  thus  invested  by 
subjects  of  Cliuia  amounted  to  not  less  than  S200,000.  It  was  also 
admitted  that  Yick  Wo  and  about  150  of  his  countrymen  had  been 
arrested  for  non-compliance  with  the  ordinances,  while,  as  the 
petition  for  habeas  corpus  said,  "  Those  who  are  not  subjects  of 
China,  and  who  are  conducting  eighty  odd  laundries  under  similar 
conditions,  are  left  unmolested  ";  but  on  the  other  side  it  was 
insisted  that  the  unmolested  laundries  were  in  wooden  buildings 
without  wooden  scaffoldings  on  the  roof.  It  was  admitted  also 
that  "  petitioner  and  200  of  his  countrymen  similarl}^  situated 
petitioned  the  board  of  supervisors  for  permission  to  continue  their 
business  in  the  various  houses  which  they  had  been  occupying  and 
using  for  laundries  for  more  than  twenty  years,  and  such  petitions 
were  denied,  and  all  the  petitions  of  those  who  were  not  Chinese, 
with  one  exception,  .  .  .  were  granted."  The  writ  was  discharged 
by  the  Supreme  Court  of  California,  and  the  prisoner  remanded. 
In  deference  to  this  decision,  the  Circuit  Court  of  the  United  States 
discharged  the  writ  in  the  similar  case  of  Wo  Lee  v.  Hopkins  (26 
Fed.  471). 

Hall  McAllister,  and  others,   for  plamtiffs  in  error;    and  A. 
Clarke  and  another,  contra. 


TICK    WO    V.    HOPKINS.  661 

Matthews,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  determination  of  the  question  whether  the  proceedings 
under  these  ordinances  and  in  enforcement  of  them  are  in  conflict 
with  the  Constitution  and  laws  of  the  United  States  necessarily 
involves  the  meaning  of  the  ordinances,  which,  for  that  purpose,  we 
are  required  to  ascertain  and  adjudge. 

We  are  consequently  constrained,  at  the  outset,  to  differ  from  the 
Supreme  Court  of  CaUfornia  upon  the  real  meaning  of  the  ordi- 
nances in  question.  That  court  considered  these  ordinances  as 
vesting  in  the  board  of  supervisors  a  not  unusual  discretion  in 
grantmg  or  withholding  their  assent  to  the  use  of  wooden  buildings 
as  laundries,  to  be  exercised  in  reference  to  the  circumstances  of 
each  case,  with  a  view  to  the  protection  of  the  pubhc  against  the 
dangers  of  fire.  We  are  not  able  to  concur  in  that  interpretation 
of  the  power  conferred  upon  the  supervisors.  There  is  nothing  in 
the  ordinances  which  points  to  such  a  regulation  of  the  business  of 
keeping  and  conducting  laundries.  They  seem  intended  to  confer, 
and  actually  do  confer,  not  a  discretion  to  be  exercised  upon  a 
consideration  of  the  circumstances  of  each  case,  but  a  naked  and 
arbitrary  power  to  give  or  withhold  consent,  not  only  as  to  places, 
but  as  to  persons.  So  that,  if  an  appUcant  for  such  consent,  being 
in  every  way  a  competent  and  qualified  person,  and  having 
compUed  with  every  reasonable  condition  demanded  by  any  pubUc 
interest,  should,  failing  to  obtain  the  requisite  consent  of  the 
supervisors  to  the  prosecution  of  his  business,  apply  for  redress 
by  the  judicial  process  of  mandamus,  to  require  the  supervisors  to 
consider  and  act  upon  his  case,  it  would  be  a  sufficient  answer  for 
them  to  say  that  the  law  had  conferred  upon  them  authority  to 
withhold  their  assent,  without  reason  and  without  responsibiUty. 
The  power  given  to  them  is  not  confided  to  their  discretion  in  the 
legal  sense  of  that  term,  but  is  granted  to  their  mere  will.  It  is 
purely  arbitrary,  and  acknowledges  neither  guidance  nor  restraint. 

This  erroneous  view  of  the  ordinances  in  question  led  the  Su- 
preme Court  of  California  into  the  further  error  of  holding  that 
they  were  justified  by  the  decisions  of  this  court  in  the  cases  of 
Barbier  v.  Connolly,  113  U.  S.  27,  and  Soon  Hing  v.  Crowley,  113 
U.  S.  703.  In  both  of  these  cases  the  ordinance  involved  was 
simply  a  prohibition  to  carry  on  the  washing  and  ironing  of  clothes 
in  public  laundries  and  washhouses,  within  certain  prescribed 
Hmits  of  the  city  and  county  of  San  Francisco,  from  ten  o'clock  at 
night  until  six  o'clock  in  the  morning  of  the  following  day.  .  .  . 


662  THE    FOURTEENTH    AMENDMENT    AND    POLICE    FOWEU. 

The  ordinance  drawn  in  (juestion  in  the  present  case  is  of  a  very 
different  character.  It  does  not  prescribe  a  rule  and  conditions  for 
the  regulation  of  the  use  of  property  for  laundry  purposes,  to  which 
all  similarly  situated  may  conform.  It  allows  without  restriction 
the  use  for  such  purposes  of  buildings  of  brick  or  stone;  but,  as  to 
wooden  buildings,  constituting  nearly  all  those  in  previous  use,  it 
divides  the  owners  or  occupiers  into  two  classes,  not  having  respect 
to  their  personal  character  and  qualifications  for  the  business,  nor 
the  situation  and  nature  and  adaptation  of  the  buildings  them- 
selves, but  merely  by  an  arbitrary  line,  on  one  side  of  which  are 
those  who  are  permitted  to  pursue  their  industry  by  the  mere  will 
and  consent  of  the  supervisoi's,  and  on  the  other  those  from  whom 
that  consent  is  withheld,  at  their  mere  will  and  pleasure.  And 
both  classes  ure  alike  only  in  this,  that  they  are  tenants  at  will, 
under  the  supervisors,  of  their  means  of  Uving.  The  ordinance, 
therefore,  also  differs  from  the  not  unusual  case,  where  discretion 
is  lodged  by  law  in  public  officers  or  bodies  to  grant  or  withhokl 
licenses  to  keep  taverns,  or  places  for  the  sale  of  spirituous  liciuors, 
and  the  like,  when  one  of  the  conditions  is  that  the  applicant  shall 
be  a  fit  person  for  the  exercise  of  the  privilege,  because  in  such  cases 
the  fact  of  fitness  is  submitted  to  the  jutlgment  of  the  officer,  and 
calls  for  the  exercise  of  a  discretion  of  a  judicial  nature. 

The  rights  of  the  petitioners,  as  affected  by  the  proceedings  of 
which  they  complain,  are  not  less,  l)ecause  they  are  aliens  and 
subjects  of  the  Emperor  of  China.  By  the  third  article  of  the 
treaty  between  this  Government  and  that  of  China,  concluded 
November  17,  1880,  22  Stat.  827,  it  is  stipulated:  "  If  Chinese 
laborers,  or  Chinese  of  any  other  class,  now  either  permanently  or 
temporarily  residing  in  the  territory  of  the  United  States,  meet 
with  ill  treatment  at  the  hands  of  any  other  persons,  the  Govern- 
ment of  the  United  States  will  exert  all  its  powers  to  devise  meas- 
ures for  their  protection,  and  to  secure  to  them  the  same  rights, 
privileges,  immunities  and  exemptions  as  may  be  enjoyed  by  the 
citizens  or  subjects  of  the  most  favored  nation,  and  to  which  they 
are  entitled  by  treaty." 

The  Fourteenth  Amendment  to  the  Constitution  is  not  confined 
to  the  protection  of  citizens.  It  says:  "  Nor  shall  any  State 
deprive  any  person  of  fife,  liberty,  or  property  without  due  process 
of  law;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws."  These  pro\asions  are  universal  in  their 
appfication,  to  all  persons  within  the  territorial  jurisdiction,  with- 
out regard  to  any  differences  of  race,  of  color,  or  of  nationality; 


YICK    WO    V.    HOPKINS.  6G3 

and  the  equal  protection  of  the  laws  is  a  pledge  of  the  protection  of 
equal  laws.  It  is  accordingly  enacted  by  §  1977  of  the  Revised 
Statutes,  that  "  all  persons  within  the  jurisdiction  of  the  United 
States  shall  have  the  same  right  in  every  State  and  Territory  to 
make  and  enforce  contracts,  to  sue,  be  parties,  give  evidence,  and 
to  the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  persons  and  property  as  is  enjoyed  by  white  citizens  and 
shall  be  subject  to  Uke  punishment,  pains,  penalties,  taxes,  Ucenses, 
and  exactions  of  everv^  kind,  and  to  no  other."  The  questions  we 
have  to  consider  and  decide  in  these  cases,  therefore,  are  to  be 
treated  as  involving  the  rights  of  every  citizen  of  the  United 
States  equally  with  those  of  the  strangers  and  aliens  who  now 
invoke  the  jurisdiction  of  the  court. 

It  is  contended  on  the  part  of  the  petitionei-s,  that  the  ordi- 
nances for  violations  of  which  they  are  severally  sentenced  to 
imprisonment,  are  void  on  their  face,  as  being  witliin  the  pro- 
hibitions of  the  Fourteenth  Amendment;  and,  in  the  alternative, 
if  not  so,  that  they  are  void  by  reason  of  their  administration, 
operating  unequally,  so  as  to  punish  in  the  present  petitioners  what 
is  permitted  to  others  as  lawful,  without  any  distinction  of  cir- 
cumstances—  an  unjust  and  illegal  discrhnination,  it  is  claimed, 
which,  though  not  made  expressly  by  the  ordinances  is  made 
possible  by  them. 

When  we  consider  the  nature  and  the  theory  of  our  institutions 
of  government,  the  principles  upon  which  they  are  supposed  to 
rest,  and  review  the  history  of  their  development,  we  are  con- 
strained to  conclude  that  they  do  not  mean  to  leave  room  for  the 
play  and  action  of  purely  personal  and  arbitrary-  power.  Sov- 
ereignty itself  is,  of  course,  not  subject  to  law,  for  it  is  the  author 
and  source  of  law;  but  in  our  system,  while  sovereign  powers  are 
delegated  to  the  agencies  of  government,  sovereignty  itself  remains 
with  the  people,  by  whom  and  for  whom  all  government  exists  and 
acts.  And  the  law  is  the  definition  and  Umitation  of  power.  It  is, 
indeed,  quite  true,  that  there  nmst  always  be  lodged  somewhere, 
and  in  some  person  or  body,  the  authority  of  final  decision;  and  m 
many  cases  of  mere  administration  the  responsibihty  is  purely 
pohtical,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
pubUc  judgment,  exercised  either  in  the  pressure  of  opinion  or  by 
means  of  the  suffrage.  But  the  fundamental  rights  to  Ufe,  Uberty, 
and  the  pursuit  of  happiness,  considered  as  individual  possessions, 
are  secured  by  those  maxims  of  constitutional  law  which  are  the 
monuments  showing  the  \'ictorious  progress  of  the  race  in  securing 


664         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

to  men  the  blessings  of  civilization  under  the  reij^n  of  just  and  equal 
laws,  so  that,  in  the  famous  language  of  the  ^Massachusetts  Bill  of 
Rights,  the  government  of  the  commonwealth  "  may  be  a  govern- 
ment of  laws  and  not  of  men."  For,  the  very  itlea  that  one  man 
may  be  compelled  to  hold  his  hfe,  or  the  means  of  living,  or  any 
material  right  essential  to  the  enjoyment  of  life,  at  the  mere  will  of 
another,  seems  to  be  intolerable  in  any  country  where  freedom 
prevails,  as  being  the  essence  of  slavery  it.self.  .  .  . 

In  the  present  cases  we  are  not  obUged  to  reason  from  the  prob- 
al)le  to  the  actual,  and  pass  upon  the  validity  of  the  ordinances 
complained  of,  as  tried  merely  by  the  opportunities  which  their 
terms  afford,  of  unequal  and  unjust  discrimination  in  their  atlmin- 
istration.  For  the  cases  present  the  ordinances  in  actual  operation, 
and  the  facts  shown  establish  an  administration  directed  so  exclu- 
sively against  a  particular  class  of  persons  as  to  warrant  and 
require  the  conclusion,  that,  whatever  may  have  been  the  intent  of 
the  ordinances  as  adopted,  they  are  applied  by  the  pulilic  authori- 
ties charged  with  their  administration,  and  thus  representing  the 
State  itself,  with  a  mind  so  unequal  and  oppressive  as  to  amount 
to  a  practical  denial  by  the  State  of  that  equal  protection  of  the 
laws  which  is  secured  to  the  petitioners,  as  to  all  other  persons,  by 
the  broad  and  benign  provisions  of  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States.  Though  the  law  itself  be 
fair  on  its  face  and  impartial  in  appearance,  yet,  if  it  is  applied  and 
administered  by  pubUc  authority  with  an  evil  eye  and  an  unequal 
hand,  so  as  practically  to  make  unjust  and  illegal  discriminations 
between  persons  in  similar  circumstances,  material  to  their  rights, 
the  denial  of  equal  justice  is  still  within  the  prohibition  of  the  Con- 
stitution. This  principle  of  interpretation  has  been  sanctioned  by 
this  court  in  Henderson  v.  Mayor  of  New  York,  92  U.  S.  259;  Chy 
Lung  V.  Freeman,  92  U.  S.  275;  Ex  parte  Virginia,  100  U.  S.  339; 
Neal  V.  Delaware,  103  U.  S.  370;  and  Soon  Hing  v.  Crowley  113 
U.  S.  703. 

The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record, 
are  within  this  class.  It  appears  that  both  petitioners  have  com- 
plied with  every  requisite,  deemed  by  the  law  or  by  the  pubhc 
officers  charged  with  its  administration,  necessary  for  the  protec- 
tion of  neighboring  property  from  fire,  or  as  a  precaution  against 
injury  to  the  pubhc  health.  No  reason  whatever,  except  the  will 
of  the  supervisors,  is  assigned  why  they  should  not  be  permitted  to 
carry  on,  in  the  accustomed  manner,  their  harmless  and  useful 
occupation,  on  which  they  depend  for  a  HveUhood.      And  while 


MUGLER    V.    KANSAS.  665 

this  consent  of  the  supervisors  is  withheld  from  them  and  from  two 
hundred  others  who  have  also  petitioned,  all  of  whom  happen  to  be 
Chinese  subjects,  eighty  others,  not  Chinese  subjects,  are  permitted 
to  carry  on  the  same  business  under  similar  conditions.  The  fact 
of  this  discrimination  is  admitted.  No  reason  for  it  is  shown,  and 
the  conclusion  cannot  be  resisted,  that  no  reason  for  it  exists  except 
hostihty  to  the  race  and  nationaUty  to  which  the  petitioners  belong, 
and  which  in  the  eye  of  the  law  is  not  justified.  The  discrimina- 
tion is,  therefore,  illegal,  and  the  pubhc  administration  which 
enforces  it  is  a  denial  of  the  equal  protection  of  the  laws  and  a 
violation  of  the  Fourteenth  Amendment  of  the  Constitution.  The 
imprisonment  of  the  petitioners  is,  therefore,  illegal,  and  they  must 
be  discharged.     To  this  end, 

The  judgment  of  the  Supreme  Court  of  California  in  the  case  of 
Yick  Woj  and  that  of  the  Circuit  Court  of  the  United  States  for  the 
District  of  California  in  the  case  of  Wo  Lee,  are  severally  reversed, 
and  the  cases  remanded,  each  to  the  proper  court,  with  directions  to 
discharge  the  petitioners  from  custody  and  imprisonment.^ 


MUGLER  V.   KANSAS;    MUGLER  v.   KANSAS;    and 
KANSAS  V.   ZIEBOLD. 

Supreme  Court  of  the  United  States.     1887. 
[123  United  States,  623.]  * 

The  two  Mugler  cases  came  from  the  Supreme  Court  of  Kansas 
on  writ  of  error;  and  the  Ziebold  case  came  on  appeal  from  the 
Circuit  Court  of  the  United  States  for  the  District  of  Kansas. 

In  1880  an  amendment  to  the  constitution  of  Kansas  declared 
that  the  manufacture  and  sale  of  intoxicating  Hquors  should  be 
forever  prohibited  except  for  medical,  scientific,  and  mechanical 
purposes.  A  statute  takuig  effect  on  May  1,  1881,  enacted,  among 
other  things,  that  any  one  who  should  manufacture,  sell,  or  barter 
intoxicating  liquors  should  be  guilty  of  a  misdemeanor,  provided, 
however,  that  for  medical,  scientific,  or  mechanical  purposes  there 

1  Compare  Crowley  v.  Christensen,  137  U.  S.  86  (1890);  and  Fischer  v.  St. 
Louis,  194  U.  S.  361  (1904).  —  Ed. 

2  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


660         THE    FOURTEENTH    AMENDMENT   -AND    POLICE    POWER. 

might  be  a  permit  or  license  for  sale  or  manufacture.  Under  this 
statute,  Mugler  was  twice  indicted  in  November,  1881,  in  the 
District  Court  for  Saline  County,  one  indictment  being  for  sales  in 
that  month  and  the  other  being  for  manufacturing  in  that  month. 
In  each  of  these  cases  there  was  an  agreed  statement  of  facts;  and 
in  each  of  them  Mugler  was  adjudged  guilty  and  was  sentenced  to 
pay  a  fine  of  $100  and  costs.  In  each  case  a  motion  for  a  new  trial 
and  in  arrest  of  judgment  was  overruled  and  the  Supreme  Court  of 
Kansas  affirmed  the  judgment. 

The  Ziebold  case  was  begun  in  1886  by  an  information  filed  in  the 
District  Court  for  Atchison  County,  praying  that  a  brewery 
owned  by  Ziebold  and  his  partner  be  adjudged  a  common  nuisance 
and  be  ordered  to  be  shut  up  and  abated,  and  that  the  defendants 
be  enjoined  from  selling  or  manufacturing  intoxicating  Hquors  on 
the  premises.  This  action  was  based  upon  a  statute  of  1885  which 
enacted:  "Sec.  13.  All  places  where  intoxicating  liquors  are 
manufactured,  sold,  bartered,  or  given  away  in  violation  of  any  of 
the  provisions  of  this  act  .  .  .  are  hereby  declared  to  be  common 
nuisances,  and  upon  the  judgment  of  any  court  having  jurisdiction 
finding  such  a  place  to  be  a  nuisance  under  this  section,  the  sheriff 
.  .  .  shall  be  directed  to  shut  up  and  abate  such  place  by  taking 
possession  thereof  and  destroying  all  intoxicating  liquors  found 
there,  together  with  all  signs,  screens,  bars,  bottles,  glasses,  and 
other  property  used  in  keeping  and  maintaining  said  nuisance,  and 
the  owner  or  keeper  thereof  shall,  upon  conviction,  be  adjudged 
guilty  of  maintaining  a  common  nuisance,  and  shall  be  punished  by 
a  fine,  .  .  .  and  by  imprisonment.  .  .  .  The  attorney  general, 
county  attorney,  or  any  citizen  .  .  .  may  maintain  an  action 
in  the  name  of  the  State  to  abate  and  perpetually  enjoin  the  same. 
The  injunction  shall  be  granted  at  the  commencement  of  the 
action,  and  no  bond  shall  be  required."  On  the  defendants' 
motion  this  case  —  upon  the  ground  that  it  arose  under  the  Con- 
stitution of  the  United  States  —  was  removed  to  the  Circuit  Court 
of  the  United  States  for  the  District  of  Kansas,  where  an  amended 
bill  in  equity  was  filed.     On  hearing,  the  suit  was  dismissed. 

Other  facts  are  found  in  the  opinion. 

G.  G.  Vest,  for  Mugler;  J.  H.  Choate  and  others,  for  Ziebold;  and 
Bradford,  Attorney  General  of  Kansas,  and  others,  contra. 

Harlan,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  facts  necessary  to  a  clear  understanding  of  the  questions, 
common  to  these  cases,  are  the  following:  Mugler  and  Ziebold  & 
Hagelin  were  engaged  in  manufacturing  beer  at  their  respective 


MUGLER    V.    KANSAS.  667 

establishments  (constructed  specially  for  that  purpose),  for  several 
years  prior  to  the  adoption  of  the  constitutional  amendment  of 
1880.  They  continued  in  such  business  in  defiance  of  the  statute 
of  1881,  and  without  having  the  required  permit.  Nor  did  Alugler 
have  a  Ucense  or  permit  to  sell  beer.  The  single  sale  of  which  he 
was  found  guilty  occurred  in  the  State,  and  after  May  1,  1881,  that 
is,  after  the  act  of  Februarj^  19,  1881,  took  effect,  and  was  of  beer 
manufactured  before  its  passage. 

The  buildings  and  machinery  constituting  these  breweries  are  of 
little  value  if  not  used  for  the  purpose  of  manufacturing  beer;  that 
is  to  say,  if  the  statutes  are  enforced  against  the  defendants  the 
value  of  their  property  will  be  very  materially  diminished. 

The  general  question  in  each  case  is,  whether  the  foregoing 
statutes  of  Kansas  are  in  conflict  with  that  clause  of  the  Fom- 
teenth  Amendment,  which  provides  that  ''  no  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  priWleges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive  any  per- 
son of  Ufe,  Uberty,  or  property,  without  due  process  of  law." 

That  legislation  by  a  State  prohibiting  the  manufacture  within 
her  Umits  of  intoxicating  liquors,  to  be  there  sold  or  bartered  for 
general  use  as  a  beverage,  does  not  necessarily  infringe  any  right, 
privilege,  or  immunity  secured  by  the  Constitution  of  the  United 
States,  is  made  clear  by  the  decisions  of  this  court,  rendered  before 
and  since  the  adoption  of  the  Fourteenth  Amendment.  .  .  . 

It  is,  however,  contended,  that,  although  the  State  may  prohibit 
the  manufacture  of  into.Kicating  liquors  for  sale  or  barter  within 
her  limits,  for  general  use  as  a  beverage,  "  no  convention  or  legis- 
lature has  the  right,  under  our  form  of  government,  to  prohibit  any 
citizen  from  manufacturing  for  his  own  use,  or  for  export,  or 
storage,  any  article  of  food  or  drink  not  endangering  or  affecting 
the  rights  of  others."  The  argument  made  in  support  of  the  first 
branch  of  this  proposition,  briefly  stated,  is,  that  in  the  impUed 
compact  between  the  State  and  the  citizen  certain  rights  are 
reserved  by  the  latter,  which  are  guaranteed  by  the  constitu- 
tional provision  protecting  persons  against  being  deprived  of  life, 
hberty,  or  property,  without  due  process  of  law,  and  with  which 
the  State  cannot  interfere;  that  among  those  rights  is  that  of 
manufacturing  for  one's  use  either  food  or  drink;  and  that  while, 
according  to  the  doctrines  of  the  Commune,  the  State  may  control 
the  tastes,  appetites,  habits,  dress,  food,  and  drink  of  the  people, 
our  system  of  government,  based  upon  the  indivdduaUty  and 
intelligence  of  the  citizen,  does  not  claim  to  control  him,  except  as 


668         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

to  his  conduct  to  others,  leaving  him  the  sole  judge  as  to  all  that 
only  affects  himself. 

It  will  be  observed  that  the  proposition,  and  the  argument  made 
in  support  of  it,  equally  concede  that  the  right  to  manufacture 
drink  for  one's  personal  use  is  subject  to  the  condition  that  such 
manufacture  docs  not  endanger  or  affect  the  rights  of  others.  If 
such  manufacture  does  prejudicially  affect  the  rights  and  interests 
of  the  community,  it  follows,  from  the  very  premises  stated,  that 
society  has  the  power  to  protect  itself,  by  legislation,  against  the 
injurious  consequences  of  that  business.  As  was  said  in  Munn  v. 
Illinois,  94  U.  S.  113,  124,  while  power  does  not  exist  with  the  whole 
people  to  control  rights  that  are  purely  and  exclusively  private, 
govermnent  may  require  "  each  citizen  to  so  conduct  himself,  and 
so  use  his  own  property,  as  not  unnecessarily  to  injure  another." 

But  by  whom,  or  by  what  authority,  is  it  to  be  determined 
whether  the  manufacture  of  particular  articles  of  chink,  either  for 
general  use  or  for  the  personal  use  of  the  maker,  will  injuriously 
affect  the  public  ?  Power  to  determine  such  questions,  so  as  to 
bind  all,  must  exist  somewhere ;  else  society  will  be  at  the  mercy  of 
the  few,  who,  regarding  only  their  own  appetites  or  passions,  may 
be  willing  to  imperil  the  peace  and  security  of  the  many,  provided 
only  they  are  permitted  to  do  as  they  please.  Under  our  system 
that  power  is  lodged  with  the  legislative  branch  of  the  government. 
It  belongs  to  that  department  to  exert  what  are  known  as  the  poUce 
powers  of  the  State,  and  to  determine,  primarily,  what  measures  are 
appropriate  or  needful  for  the  protection  of  the  public  morals,  the 
pubHc  health,  or  the  pubhc  safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly  for 
the  promotion  of  these  ends,  is  to  be  accepted  as  a  legitimate 
exertion  of  the  police  powers  of  the  State.  There  are,  of  necessity, 
Hmits  beyond  which  legislation  cannot  rightfully  go.  While  every 
possible  presumption  is  to  be  indulged  in  favor  of  the  validity  of  a 
statute,  Sinldng  Fund  Cases,  99  U.  S.  700,  718,  the  courts  must 
obey  the  Constitution  rather  than  the  law-making  department  of 
government,  and  must,  upon  their  own  responsibility,  determine 
whether,  in  any  particular  case,  these  limits  have  been  passed.  .  .  . 
The  courts  are  not  bound  by  mere  forms,  nor  are  they  to  be  misled 
by  mere  pretences.  They  are  at  liberty  —  indeed,  are  under  a 
solemn  duty  —  to  look  at  the  substance  of  things,  whenever  they 
enter  upon  the  inquiry  whether  the  legislature  has  transcended  the 
limits  of  its  authority.  If,  therefore,  a  statute  purporting  to  have 
been  enacted  to  protect  the  public  health,  the  public  morals,  or  the 


MUGLER   V.    KANSAS.  669 

public  safety,  has  no  real  or  substantial  relation  to  those  objects, 
or  is  a  palpable  invasion  of  rights  secured  by  the  fundamental  law, 
it  is  the  duty  of  the  courts  to  so  adjudge,  and  thereby  give  effect  to 
the  Constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations  of  the 
judicial  and  legislative  departments  of  government  with  each  other, 
it  is  difficult  to  perceive  any  ground  for  the  judiciary  to  declare 
that  the  prohibition  by  Kansas  of  the  manufacture  or  sale,  wdthin 
her  limits,  of  intoxicating  liquors  for  general  use  there  as  a  beverage, 
is  not  fairly  adapted  to  the  end  of  protecting  the  community  against 
the  evils  which  confessedly  result  from  the  excessive  use  of  ardent 
spirits.  There  is  no  justification  for  holding  that  the  State,  under 
the  guise  merely  of  poUce  regulations,  is  here  aiming  to  deprive  the 
citizen  of  his  constitutional  rights;  for  we  cannot  shut  out  of  \'iew 
the  fact,  within  the  knowledge  of  all,  that  the  public  health,  the 
pubHc  morals,  and  the  pubhc  safety,  may  be  endangered  by  the 
general  use  of  intoxicating  drinks;  nor  the  fact,  estabhshed  ])y 
statistics  accessible  to  every  one,  that  the  idleness,  disorder, 
pauperism,  and  crime  existing  in  the  country  are,  in  some  degree  at 
least,  traceable  to  this  evil.  ...  If,  in  the  judgment  of  the 
legislature,  the  manufacture  of  intoxicating  hquors  for  the  maker's 
own  use,  as  a  beverage,  would  tend  to  cripple,  if  it  did  not  defeat, 
the  effort  to  guard  the  community  against  the  evils  attending  the 
excessive  use  of  such  hquors,  it  is  not  for  the  courts,  upon  their 
views  as  to  what  is  best  and  safest  for  the  community,  to  disregard 
the  legislative  determination  of  that  question.  .  .  . 

It  is  contended  that,  as  the  primary  and  principal  use  of  beer  is 
as  a  bevefage;  as  their  respective  breweries  were  erected  when  it 
was  lawful  to  engage  in  the  manufacture  of  beer  for  eveiy  purpose; 
as  such  estabhshments  will  become  of  no  value  -as  property,  or,  at 
least,  will  be  materially  diminished  in  value,  if  not  employed  in  the 
manufacture  of  beer  for  every  purpose;  the  prohibition  upon  their 
being  so  employed  is,  in  effect,  a  taking  of  property  for  pubhc  use 
without  compensation,  and  depriving  the  citizen  of  his  property 
without  due  process  of  law.  In  other  words,  although  the  State, 
in  the  exercise  of  her  police  powers,  may  lawfully  prohibit  the 
manufacture  and  sale,  within  her  limits,  of  intoxicating  hquors  to  be 
used  as  a  beverage,  legislation  ha\4ng  that  object  in  view  cannot  be 
enforced  against  those  who,  at  the  time,  happen  to  own  property, 
the  chief  value  of  which  consists  in  its  fitness  for  such  manufactur- 
ing purposes,  unless  compensation  is  first  made  for  the  diminu- 


G70         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

tion  in  the  value  of  their  property,  resulting  from  such  prohil^itory 
enactments. 

This  interpretation  of  the  Fourteenth  .\jnendment  is  inad- 
missible. It  cannot  be  supposed  that  the  States  intended,  by 
adopting  that  Amendment,  to  impose  restraints  upon  the  exercise 
of  their  powers  for  the  protection  of  the  safety,  health,  or  morals 
of  the  comnmnity.  .  .  . 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law,  was  embodied,  in  substance, 
in  the  constitutions  of  nearly  all,  if  not  all,  of  the  States  at  the  tinie 
of  the  adoption  of  the  Fourteenth  Amendment;  and  it  has  never 
been  regarded  as  incompatible  with  the  principle,  equally  vital, 
because  essential  to  the  peace  and  safety  of  society,  that  all  prop- 
erty in  this  country  is  held  under  the  implied  obUgation  that  the 
owner's  use  of  it  shall  not  be  injurious  to  the  community.  Beer 
Co.  V.  Massachusetts,  97  U.  S.  25,  32;  Commonwealth  v.  Alger, 
7  Cush.  53.  .  .  . 

The  present  case  must  be  governed  by  principles  that  do  not 
involve  the  power  of  eminent  domain,  in  the  exercise  of  which  prop- 
erty may  not  be  taken  for  public  use  without  compensation.  A 
prohibition  simply  upon  the  use  of  property  for  purposes  that  are 
declared,  by  valid  legislation,  to  Ix'  injurious  to  the  health,  morals, 
or  safety  of  the  community,  cannot,  in  any  just  sense,  be  deemed  a 
taking  or  an  appropriation  of  property  for  the  pul)lic  benefit. 
Such  legislation  does  not  disturb  the  owner  in  the  control  or  use  of 
his  property  for  lawful  purposes,  nor  restrict  his  right  to  dispose  of 
it,  but  is  only  a  declaration  by  the  State  that  its  use  b}'  an}'  one,  for 
certain  forbidden  purposes,  is  prejudicial  to  the  public  interests. 
Nor  can  legislation  of  that  character  come  within  the  Fourteenth 
Amendment,  in  any  case,  unless  it  is  apparent  that  its  real  object  is 
not  to  protect  the  community,  or  to  promote  the  general  well- 
being,  but,  under  the  guise  of  police  regulation,  to  deprive  the 
owner  of  his  hberty  and  property,  without  due  process  of  law. 
The  power  which  the  States  have  of  prohibiting  such  use  by  indi- 
viduals of  their  property  as  will  be  prejudicial  to  the  health,  the 
morals,  or  the  safety  of  the  public,  is  not  —  and,  consistently  with 
the  existence  and  safety  of  organized  society,  cannot  be — burdened 
with  the  condition  that  the  State  must  compensate  such  indi\'idual 
owners  for  pecuniary  losses  they  may  sustain,  by  reason  of  their 
not  being  permitted,  by  a  noxious  use  of  their  property,  to  inflict 
injuiy  upon  the  community.  The  exercise  of  the  poUce  power  by  the 
destruction  of  property  which  is  itself  a  public  nuisance,  or  the  pro- 


MTJGLER  V.   KANSAS. 


671 


hibition  of  its  use  in  a  particular  way,  whereby  its  value  becomes 
depreciated,  is  very  different  from  taking  property  for  public  use, 
or  from  depriving  a  person  of  his  property  without  due  process  of 
law.  In  the  one  case,  a  nuisance  only  is  abated;  in  the  other, 
unoffending  property  is  taken  away  from  an  innocent  owner.  .  .  . 

It  is  contended  by  counsel  in  the  case  of  Kansas  v.  Ziebold  & 
HageKn,  that  the  entire  scheme  of  this  section  is  an  attempt  to 
deprive  persons  who  come  within  its  provisions  of  their  property 
and  of  their  Uberty  without  due  process  of  law.  .  .  . 

It  is  said  that  by  the  thirteenth  section  of  the  act  of  1885,  the 
legislature,  finding  a  brewery  within  the  State  in  actual  operation, 
without  notice,  trial,  or  hearing,  by  the  mere  exercise  of  its  arbitrary 
caprice,  declares  it  to  be  a  common  nuisance,  and  then  prescribes 
the  consequences  which  are  to  follow  inevitably  by  judicial  man- 
date required  by  the  statute,  and  involving  and  permitting  the 
exercise  of  no  judicial  discretion  or  judgment;  that  the  brewery 
being  found  in  operation,  the  court  is  not  to  determine  whether  it 
is  a  common  nuisance,  but,  under  the  command  of  the  statute,  is  to 
find  it  to  be  one;  that  it  is  not  the  liquor  made,  or  the  making  of  it, 
which  is  thus  enacted  to  be  a  common  nuisance,  but  the  place  itself, 
including  all  the  property  used  in  keeping  and  maintaining  the 
common  nuisance;  that  the  judge  havmg  thus  signed  without 
inquiry  —  and,  it  may  be,  contrary  to  the  fact  and  against  his  own 
judgment  —  the  edict  of  the  legislature,  the  court  is  commanded  to 
take  possession  by  its  officers  of  the  place  and  shut  it  up;  nor  is  all 
this  destruction  of  property,  by  legislative  edict,  to  ])e  made  as  a 
forfeiture  conseciuent  upon  conviction  of  any  offense,  but  merely 
because  the  legislature  so  commands;  and  it  is  done  by  a  court  of 
equity,  without  any  previous  conviction  first  had,  or  any  trial 
known  to  the  law.  ... 

But  those  statutes  have  no  such  scope  and  are  attended  with  no 
such  results  as  the  defendants  suppose.  The  court  is  not  required 
to  give  effect  to  a  legislative  "  decree  "  or  "  edict,"  unless  every 
enactment  by  the  law-making  power  of  a  State  is  to  be  so  char- 
acterized. It  is  not  declared  that  everv-  estabhshment  is  to  be 
deemed  a  common  nuisance  because  it  may  have  been  maintained 
prior  to  the  passage  of  the  statute  as  a  place  for  manufacturing 
intoxicating  hquors.  The  statute  is  prospective  in  its  operation, 
that  is,  it  does  not  put  the  brand  of  a  common  nuisance  upon  any 
place,  unless,  after  its  passage,  that  place  is  kept  and  maintained 
for  purposes  declared  by  the  legislature  to  be  injurious  to  the 
community.     Nor  is  the  court  required  to  adjudge  any  place  to  be 


672         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWEU. 

a  coinmoii  nuisance  simply  because  it  is  charged  by  the  State  to  be 
such.  It  must  first  find  it  to  be  of  that  character;  that  is,  nmst 
ascertain,  in  some  legal  mode,  whether  since  the  statute  was  passed 
the  place  in  question  has  been,  or  is  being,  so  used,  as  to  make  it  a 
common  nuisance.  .  .  . 

A  portion  of  the  argument  in  behalf  of  the  defendants  is  to  the 
eft'ect  that  the  statutes  of  Kansas  forbid  the  manufacture  of  intoxi- 
cating Hquors  to  be  exported,  or  to  be  carried  to  other  States,  and, 
upon  that  ground,  are  repugnant  to  the  clause  of  the  Constitution 
of  the  United  States,  giving  Congress  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States.  We  need  on\y 
say,  upon  this  point,  that  there  is  no  intimation  in  the  record  that 
the  beer  which  the  respective  defendants  manufactured  was 
intended  to  be  carried  out  of  the  State  or  to  foreign  countries. 
And,  without  expressing  an  opinion  as  to  whether  such  facts  would 
have  constituted  a  good  defense,  we  observe  that  it  will  Ije  time 
enough  to  decide  a  case  of  that  character  when  it  shall  come  before 
us.  .  .  . 

Judgments  of  the  Supreme  Court  of  Kansas  .  .  .  affirmed.  .  .  . 
In  .  .  .  the  hill  of  the  State  against  Ziebold  .  .  .  decree  ...  re- 
versed. .  .  . 

Field,  J.  .  .  .     Idissentfromthe  judgment  in  the  last  case,  the 
one  coming  from  the  Circuit  Court  of  the  United  States.  .  .  . 


POWELL  V.   PENNSYLVANIA. 

Supreme  Court  of  the  United  States.     1888. 

[127  United  Slates,  678.]  > 

Error  to  the  Supreme  Court  of  Pemisylvania. 

In  the  Court  of  Quarter  Sessions  of  the  Peace  in  Dauphin  County, 
Powell  was  indicted  for  selUng  butterine  as  an  article  of  food  and 
also  for  havmg  it  in  liis  possession  with  an  intent  to  sell.  By  a 
statute  of  Pemisylvania  (Laws,  1885,  p.  22,  No.  25)  it  was  enacted 
that  "  no  person,  firm,  or  corporate  body  shall  manufacture  out  of 
any  oleaginous  substance  or  any  compound  of  the  same,  other 
than  that  produced  from  unadulterated  milk  or  .  .  .  cream,  .  .  . 
any  article  designed  to  take  the  place  of  butter  or  cheese  .  .  .," 

1  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


POWELL   V.    PEXNSYLVANL\.  673 

and  that  sale  or  possession  for  sale  should  be  a  misdemeanor, 
punishable  by  fine  or  imprisonment  or  both.  It  was  agreed  that 
Powell  sold  as  an  article  of  food  two  packages  of  the  article  pro- 
hibited, that  they  were  sold  and  bought  as  butterine  and  not  as 
butter,  that  they  were  marked  with  the  words  "  Oleaginous 
Butter,"  upon  the  hd  and  side  in  a  straight  line,  in  Roman  letters 
half  an  inch  long,  and  that  Powell  had  in  his  possession  one  hundred 
pounds  of  the  same  article  with  intent  to  sell  as  an  article  of  food. 
The  defendant  made  certain  offers  of  evidence,  described  in  the 
opinion  of  the  Supreme  Court  of  the  United  States;  but  they  were 
excluded,  and  exceptions  were  duly  taken.  A  verdict  of  guilty 
having  been  returned,  and  motions  for  a  new  trial  and  in  arrest  of 
judgment  having  been  overruled,  the  defendant  was  adjudged  to 
pay  a  fine  of  SlOO  and  costs.  The  judgment  was  afiirmed  by  the 
Supreme  Court  of  Pennsylvania  (11-i  Pa.  St.  265). 

D.  T.  WaLson  and  others,  for  plaintiff  in  error;  and  Wayne 
MacVeagh  and  another,  contra. 

Harlan,  J.,  deUvered  the  opinion  of  the  court.  .  .  . 

It  is  scarcely  necessary  to  say  that  if  this  statute  is  a  legitimate 
exercise  of  the  poUce  power  of  the  State  for  the  protection  of  the 
health  of  the  people,  and  for  the  prevention  of  fraud,  it  is  not 
inconsistent  with  that  Amendment;  for  it  is  the  settled  doctrine 
of  this  court  that,  as  government  is  organized  for  the  purpose, 
among  others,  of  preserving  the  public  health  and  the  public 
morals,  it  cannot  divest  itself  of  the  power  to  provide  for  those 
objects;  and  that  the  Fourteenth  Amendment  was  not  designed  to 
interfere  with  the  exercise  of  that  power  by  the  States.  Mugler  v. 
Kansas,  123  U.  S.  663;  Butchers'  Union  Co.  v.  Crescent  City  Co., 
Ill  U.  S.  746,  751;  Barbier  v.  Connolly,  113  U.  S.  27;  Yick  Wo.  v. 
Hopkins,  118  U.  S.  356. 

The  question,  therefore,  is  whether  the  prohibition  of  the  manu- 
facture out  of  oleaginous  substance,  or  out  of  any  compound 
thereof  other  than  that  produced  from  unadulterated  milk  or 
cream  from  unadulterated  milk,  of  an  article  designed  to  take  the 
place  of  butter  or  cheese  produced  from  pure  unadulterated  milk  or 
cream  from  unadulterated  milk,  or  the  proliibition  upon  the  manu- 
facture of  any  imitation  or  adulterated  butter  or  cheese,  or  upon 
the  selling  or  offering  for  sale,  or  having  in  possession  with  intent  to 
sell,  the  same,  as  an  article  of  food,  is  a  lawful  exercise  by  the  State 
of  the  power  to  protect,  by  poUce  regulations,  the  pubUc  health. 

The  main  proposition  advanced  by  the  defendant  is  that  his 
enjoNTiient  upon  terms  of  equaUty  with  all  others  in  similar  cir- 


674  THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

cumstances  of  the  privilege  of  pursuing  an  ordinary  calling  oi- 
trade,  and  of  acquiring,  holding,  and  selling  property,  is  an  essential 
part  of  his  rights  of  liberty  and  property,  as  guaranteed  by  the 
P'ourteenth  Amendment.  The  court  assents  to  this  general  prop- 
osition as  embodying  a  sound  principle  of  constitutional  law. 
But  it  cannot  adjudge  that  the  defendant's  rights  of  liberty  and 
property,  as  thus  tlefined,  have  been  infringed  by  the  statute  of 
Pennsylvania,  without  holding  that,  although  it  may  have  been 
enacted  in  good  faith  for  the  objects  expressed  in  its  title,  namely, 
to  protect  the  pubhc  health  and  to  prevent  the  adulteration  of 
dairy  products  and  fraud  in  the  sale  thereof,  it  has,  in  fact,  no  real 
or  substantial  relation  to  those  objects.  Mugler  v.  Kansas,  123 
U.  S.  023,  601.  The  court  is  unable  to  affirm  that  this  legislation 
has  no  real  or  substantial  relation  to  such  objects. 

It  will  be  observed  that  the  offer  in  the  court  belo.v  was  to  show 
by  proof  that  the  particular  articles  the  defendant  sold,  and  those 
in  his  possession  for  sale,  in  violation  of  the  statute,  were,  in  fact, 
wholesome  or  nutritious  articles  of  food.  It  is  entirely  consist3nt 
with  that  offer  that  many,  indeed,  that  most  kinds  of  oleomar- 
garine butter  in  the  market  contain  ingredients  that  are  or  may 
become  injurious  to  health.  The  court  cannot  say,  from  anything 
of  which  it  may  take  judicial  cognizance,  that  such  is  not  the  fact. 
Under  the  circumstances  disclosed  in  the  record,  and  in  obedience 
to  settled  rules  of  constitutional  construction,  it  must  be  assu:ned 
that  such  is  the  fact.  "  Every  possible  presumption,"  Chief  Jus- 
tice Waite  said,  speaking  for  the  court  in  Sinking  Fund  Cases,  99 
U.  S.  700,  718,  "  is  in  favor  of  the  validity  of  a  statute,  and  this 
continues  until  the  contrary  is  shown  beyond  a  rational  doubt. 
One  branch  of  the  government  cannot  encroach  on  the  domain  of 
another  without  danger.  The  safety  of  our  institutions  depends 
in  no  small  degree  on  a  strict  observance  of  this  salutary  rule." 
See,  also,  Fletcher  v.  Peck,  6  Cranch,  87,  128;  Dartmouth  College 
V.  Woodward,  4  Wheat.  518,  625;  Livingston  v.  DarUngton,  101 
U.  S.  407. 

Whether  the  manufacture  of  oleomargarine,  or  imitation  butter, 
of  the  kind  described  in  the  statute,  is,  or  may  be,  conducted  in 
such  a  way,  or  with  such  skill  and  secrecy,  as  to  baffle  ordinary 
inspection,  or  whether  it  involves  such  danger  to  the  pubUc 
health  as  to  require,  for  the  protection  of  the  people,  the  entire 
suppression  of  the  business,  rather  than  its  regulation  in  such 
manner  as  to  permit  the  manufacture  and  sale  of  articles  of  that 
class  that  do  not  contain  noxious  ingredients,  are  questions  of  fact 


POWELL    V.    PENNSYLVANIA.  675 

and  of  public  policy  which  belong  to  the  legislative  department  to 
determine.  And  as  it  does  not  appear  upon  the  face  of  the  statute, 
or  from  any  facts  of  which  the  court  must  take  judicial  cognizance, 
that  it  infringes  rights  secured  by  the  fundamental  law,  the  legis- 
lative determination  of  those  questions  is  conclusive  upon  the 
courts.  It  is  not  a  part  of  their  functions  to  conduct  investigations 
of  facts  entering  into  questions  of  pubhc  policy  merely,  and  to 

'  sustain  or  frustrate  the  legislative  will,  embodied  in  statutes,  as 
they  may  happen  to  approve  or  disapprove  its  determination  of 
such  questions.  The  power  which  the  legislature  has  to  promote 
the  general  welfare  is  very  great,  and  the  discretion  which  that 
.department  of  the  government  has,  in  the  employment  of  means 
to  that  end,  is  very  large.  .  .  .  The  legislature  of  Pennsylvania, 
upon  the  fullest  investigation,  as  we  must  conclusively  presume, 
and  upon  reasonable  grounds,  as  must  be  assumed  from  the  record, 
has  determined  that  the  proliibition  of  the  sale,  or  offering  for  sale, 
or  having  in  possession  to  sell ,  for  purposes  of  food,  of  any  article 
manufactured  out  of  oleaginous  substances  or  compounds  other 
than  those  produced  from  unadulterated  milk  or  cream  from 
unadulterated  milk,  to  take  the  place  of  butter  produced  from 
unadulterated  milk  or  cream  from  unadulterated  milk,  will  pro- 
mote the  public  health,  and  prevent  frauds  in  the  sale  of  such 
articles.     If  all  that  can  be  said  of  tliis  legislation  is  that  it  is  un- 

"K    wise,  or  unnecessarily  oppressive  to  those  manufacturing  or  selling 
\    wholesoine  oleomargarine,  as  an  article  of  food,  their  appeal  must 

•M  be  to  the  legislature,  or  to  the  ballot-box,  not  to  the  judiciary. 
The  latter  cannot  interfere  without  usurping  powers  committed  to 
another  department  of  government. 

It  is  argued,  in  behalf  of  the  defendant,  that  if  the  statute  in 
question  is  sustained  as  a  vaUd  exercise  of  legislative  power,  then 
nothing  stands  in  the  way  of  the  destruction  by  the  legislative 
department  of  the  constitutional  guarantees  of  Uberty  and  prop- 
erty. But  the  possibility  of  the  abuse  of  legislative  power  does 
not  disprove  its  existence.  That  possibility  exists  even  in  reference 
to  powers  that  are  conceded  to  exist.  Besides,  the  judiciary 
department  is  bound  not  to  give  effect  to  statutory  enactments 
that  are  plainly  forbidden  by  the  Constitution.  This  duty,  the 
court  has  said,  is  always  one  of  extreme  deUcacy;  for,  apart  from 
the  necessity  of  avoiding  conflicts  between  coordinate  branches  of 
the  government,  whether  state  or  national,  it  is  often  difficult  to 
determine  whether  such  enactments  are  within  the  powers  granted 
to  or  possessed  by  the  legislature.     Nevertheless,  if  the  incompati- 


676         THE   FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

bility  of  the  Construction  and  the  statute  is  clear  or  palpable,  the 
courts  must  give  effect  to  the  former.  And  such  would  be  the 
duty  of  the  court  if  the  state  legislature,  under  the  pretence  of 
guarding  the  public  health,  the  pubUc  morals,  or  the  pubUc  safety, 
should  invade  the  rights  of  life,  liberty,  or  property,  or  other  rights, 
secured  by  the  supreme  law  of  the  land. 

The  objection  that  the  statute  is  repugnant  to  the  clause  of  the 
Fourteenth  Amendment  forbidtling  the  denial  l)y  the  State  to  any 
person  within  its  jurisdiction  of  the  equal  protection  of  the  laws,  is 
untenable.  The  statute  places  under  the  same  restrictions,  and 
subjects  to  like  penalties  and  burdens,  all  who  manufacture,  or  sellj 
or  offer  for  sale,  or  keep  in  possession  to  sell,  the  articles  embraced 
by  its  prohibitions;  thus  recognizing  and  preserving  the  principle 
of  equality  among  those  engaged  in  the  same  business.  Barl^ier  v. 
Connolly,  113  U.  S.  27;  Soon  Hing  v.  Crowley,  113  U.  S.  703; 
Missouri  Pacific  Railway  Co.  v.  Humes,  115  U.  S.  512,  519.  .  .  . 

We  are  of  opinion  that  there  is  no  error  in  the  judgment,  and  it  is, 
therefore,  Ajfirined} 

Field,  J.,  dissenting.  .  .  . 


MINNEAPOLIS  &  ST.   LOUIS  RAILWAY  CO.  v. 
BECKWITH. 

Supreme  Court  of  the  United  States.     1889. 

[129  United  States,  26.] 

Error  to  the  Circuit  Court  of  Kossuth  County,  Iowa. 

The  case  is  stated  in  the  opinion  of  the  court. 

Eppa  Hunton,  for  plaintiff  in  error;  and  no  appearance  contra.^ 

Field,  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  from  the  Circuit  Court  of  Kossuth 
County,  Iowa,  the  highest  court  of  that  State  in  which  the  con- 
troversy between  the  parties  could  be  determined.  Rev.  Stat. 
§  709.  It  was  an  action  for  the  value  of  three  hogs,  run  over  and 
killed  by  the  enguie  and  cars  of  the  Minneapolis  and  St.  Louis 
Railway  Company,  a  corporation  existing  under  the  laws  of  Minne- 
sota and  Iowa,  and  operating  a  railroad  in  the  latter  State.     The 

1  Compare  Schollenberger  v.  Pennsylvania,  171  U.  S.  1  (1898).  —  Ed. 


MINNEAPOLIS    &    ST.    LOUIS    RAILWAY    CO.    V.    BECKWITH.      677 

killing  was  at  a  point  where  the  defendant  had  the  right  to  fence 
its  road.  The  action  was  brought  before  a  justice  of  the  peace  of 
Kossuth  County.  Proof  having  been  made  of  the  killing  of  the 
animals  and  of  their  value,  and  that  notice  of  the  fact,  with  affidavit 
of  the  injury,  had  been  served  upon  an  officer  of  the  company  in  the 
county  where  the  injury  was  committed,  more  than  thirty  days 
before  the  commencement  of  the  action,  the  justice  gave  judgment 
for  the  plaintiff  agauist  the  company  for  twenty-four  dollars, 
double  the  proved  value  of  the  animals.  The  case  was  then 
removed  to  the  Circuit  Court  of  Kossuth  County,  where  the  judg- 
ment was  affirmed.  To  review  this  latter  judgment  the  case  is 
brought  here  on  writ  of  error . 

The  judgment  rendered  by  the  justice  was  authorized  by  §  1289 
of  the  Code  of  Iowa,  which  is  as  follows : 

"  Any  corporation  operating  a  railway  that  fails  to  fence  the 
same  agamst  live  stock  runnmg  at  large  at  all  pomts  where  such 
right  to  fence  exists  shall  be  liable  to  the  o^\^ler  of  any  such  stock 
injured  or  killed  by  reason  of  the  want  of  such  fence  for  the  value  of 
the  property  or  damage  caused,  unless  the  same  was  occasioned  by 
the  wilful  act  of  the  owner  or  his  agent.  And  in  order  to  recover  it 
shall  only  be  necessary  for  the  owTier  to  prove  the  injury  or  destruc- 
tion of  his  property;  and  if  such  corporation  neglects  to  pay  the 
value  of  or  damages  done  to  such  stock  within  thirty  days  after 
notice  in  writing,  accompanied  by  an  affidavit  of  such  injury  or 
destruction,  has  been  served  on  any  officer,  station  or  ticket-agent 
employed  in  the  management  of  the  busmess  of  the  corporation  in 
the  county  where  the  injury  complained  of  was  committed,  such 
owner  shall  be  entitled  to  recover  double  the  value  of  the  stock 
killed  or  damages  caused  thereto." 

The  validity  of  this  law  was  assailed  in  the  state  court,  and  is 
assailed  here,  as  being  in  conflict  with  the  first  section  of  the  Four- 
teenth Amendment  of  the  Constitution  of  the  United  States,  in 
that  it  deprives  the  railway  company  of  property  without  due 
process  of  law,  so  far  as  it  allows  a  recovery  of  double  the  value  of  the 
animals  killed  by  its  trains;  and  in  that  it  denies  to  the  company 
the  equal  protection  of  the  laws  by  subjecting  it  to  a  different 
liability  for  injuries  committed  by  it  from  that  to  which  all  other 
persons  are  subjected. 

It  is  contended  by  counsel  as  the  basis  of  his  argument,  and  we 
admit  the  soundness  of  his  position,  that  corporations  are  persons 
A\-ithin  the  meaning  of  the  clause  in  question.  It  was  so  held  in 
Santa  Clara  County  v.  Southern  Pacific  Railroad  Co.,  118  U.  S,  394, 


G78         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

396,  and  the  doctrine  was  reasserted  in  Pembina  Mining  Company 

V.  Pennsylvania,  125  U.  S.  181,  189.  We  admit  also,  as  contended 
by  him,  that  corporations  can  invoke  the  benefits  of  provisions  of 
the  Constitution  and  laws  which  guarantee  to  persons  the  enjoy- 
ment of  property,  or  afford  to  them  the  means  for  its  protection,  or 
prohibit  legislation  injuriously  affecting  it. 

We  will  consider  the  objections  of  the  railway  company  in  the 
reverse  order  in  which  they  are  stated  by  counsel.  And  first,  as  to 
the  alleged  conflict  of  the  law  of  Iowa  with  the  clause  of  the  Four- 
teenth Amenchnent  ordaining  that  no  State  shall  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws.  That 
clause  does  undoubtedly  prohibit  discriminating  and  partial 
legislation  by  any  State  in  favor  of  particular  persons  as  against 
others  in  like  condition.  Equality  of  protection  implies  not  merely 
equal  accessibility  to  the  courts  for  the  prevention  or  redress  of 
wrongs  and  the  enforcement  of  rights,  but  equal  exemption  with 
others  in  like  condition  from  charges  and  liabilities  of  every  kind. 
But  the  clause  does  not  limit,  nor  was  it  designed  to  limit,  the  sub- 
jects upon  which  the  police  power  of  the  State  may  be  exerted. 
The  State  can  now,  as  before,  prescribe  regulations  for  the  health, 
good  order  and  safety  of  society,  a  nd  adopt  such  measures  as  \\\\\ 
advance  its  interests  and  prosperity.  And  to  accomplish  this  end 
special  legislation  must  be  resorted  to  in  numerous  cases,  providing 
against  accidents,  disease  and  danger,  in  the  varied  forms  in  which 
they  may  come.  The  nature  and  extent  of  such  legislation  will 
necessarily  depend  upon  the  judgment  of  the  legislature  as  to  the 
security  needed  by  society.  When  the  calling,  profession  or  busi- 
ness of  parties  is  unattended  with  danger  to  others,  little  legislation 
will  be  necessary  respecting  it.  Thus,  in  the  purchase  and  sale  of 
most  articles  of  general  use,  persons  may  be  left  to  exercise  their 
own  good  sense  and  judgment;  but  when  the  calling  or  profession 
or  business  is  attended  with  danger,  or  requires  a  certain  degree  of 
scientific  knowledge  upon  which  others  must  rely,  then  legislation 
properly  steps  in  to  impose  conditions  upon  its  exercise.  Thus,  if 
one  is  engaged  in  the  manufacture  or  sale  of  explosive  or  inflam- 
mable articles,  or  in  the  preparation  or  sale  of  medicinal  drugs, 
legislation,  for  the  security  of  society,  may  prescribe  the  terms  on 
which  he  will  be  permitted  to  carrj'  on  the  business,  and  the  liabili- 
ties he  will  incur  from  neglect  of  them.  The  concluding  clause  of 
the  first  section  of  the  Fourteenth  Amendment  simply  requires 
that  such  legislation  shall  treat  alike  all  persons  brought  under 
subjection  to  it.     The  equal  protection  of  the  law  is  afforded  when 


MINNEAPOLIS    &    ST.    LOUIS   RAILWAY    CO.    V.    BECKWITH.      679 

this  is  accomplished.  Such  has  been  the  ruling  of  this  court  in 
numerous  instances  where  that  clause  has  been  invoked  against 
legislation  supposed  to  be  in  conflict  with  it.^  .  .  . 

From  these  adjudications  it  is  evident  that  the  Fourteenth 
Amendment  does  not  limit  the  subjects  in  relation  to  which  the 
police  power  of  the  State  may  be  exercised  for  the  protection  of  its 
citizens.  That  this  power  should  be  applied  to  railroad  companies 
is  reasonable  and  just.  The  tremendous  force  brought  into  action 
in  running  railway  cars  renders  it  absolutely  essential  that  every 
precaution  should  be  taken  against  accident  by  collision,  not  only 
with  other  trains,  but  with  animals.  A  collision  with  anunals  may 
be  attended  with  more  serious  injury  than  their  destruction;  it 
may  derail  the  cars  and  cause  the  death  or  serious  injury  of  pas- 
sengers. Where  these  companies  have  the  right  to  fence  in  their 
tracks,  and  thus  secure  their  roads  from  cattle  gomg  upon  them,  it 
would  seem  to  be  a  wise  precaution  on  their  part  to  put  up  such 
guards  against  accidents  at  places  where  cattle  are  allowed  to 
roam  at  large.  The  statute  of  Iowa,  in  fixmg  an  absolute  liability 
upon  them  for  injuries  to  cattle  committed  in  the  operation  of  their 
roads  by  reason  of  the  want  .of  such  guards,  would  seem  to  treat 
this  precaution  as  a  duty.  It  is  true  that,  by  the  common  law,  the 
owiier  of  land  was  not  compelled  to  inclose  it,  so  as  to  prevent  the 
cattle  of  others  from  comnig  upon  it,  and  it  may  be  that,  in  the  ab- 
sence of  legislation  on  the  subject,  a  railway  corporation  is  not 
required  to  fence  its  railway,  the  common  law  as  to  mclosmg  one's 
land  having  been  established  long  before  railways  were  known. 
But  the  obligation  of  the  defendant  railway  company  to  use  reason- 
able means  to  keep  its  track  clear,  so  as  to  insure  safety  in  the  move- 
ment of  its  trains,  is  plainly  implied  by  the  statute  of  Iowa,  which 
also  indicates  that  the  putting  up  of  fences  would  be  such  reason- 
able means  of  safety.  If,  therefore,  the  company  omits  those 
means,  the  omission  may  well  be  regarded  as  evidence  of  such 
culpable  negligence  as  to  justify  punitive  damages  where  injury  is 
committed;  and  if  punitive  damages  in  such  cases  may  be  given, 
the  legislature  may  prescribe  the  extent  to  which  juries  may  go  in 
awarding  them.  .  .  . 

The  imposition  of  punitive  or  exemplary  damages  in  such  cases 
cannot  be  opposed  as  in  conflict  with  the  prohibition  against  the 

1  Here  were  summarized  Barbier  v.  Comiolly,  ante,  p.  656  (1885);  Soon 
Hing  V.  Crowley,  113  U.  S.  703  (1885),  Missouri  Pacific  Ry.  Co.  v.  Humes,  115 
U.  S.  512  (1885),  Missouri  Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205  (1888).  — 
Ed. 


680         THE   FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

deprivation  of  property  without  due  process  of  law.  It  is  only  one 
mode  of  imposing  a  penalty  for  the  violation  of  duty,  and  its  pro- 
priety and  legality  have  been  recognized,  as  stated  in  Day  v.  Wood- 
worth,  13  How.  363,  371,  by  repeated  judicial  decisions  for  more 
than  a  century.  Its  authorization  by  the  law  in  question  to  the 
extent  of  doubling  the  value  of  the  property  destroyetl,  or  of  the 
damage  caused,  upon  refusal  of  the  railway  company,  for  thirty 
days  after  notice  of  the  injur>^  committed,  to  pay  the  actual  value 
of  the  property  or  actual  damage,  cannot  therefore  be  justly 
assailed  as  infringing  upon  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States. 

Judgment  affirmed.^ 


LAWTON  V.   STEELE. 
Supreme  Court  of  the  United  States.     1894. 

[152  United  States,  133.1  ^ 

Error  to  the  Supreme  Court  of  New  York. 

In  the  Supreme  Court  for  Jefferson  County,  La^vton  and  others 
brought  action  for  the  conversion  of  fish  nets.  Steele  was  a  fish 
protector  appointed  by  the  Governor  of  New  York,  and  as  such 
officer  had  taken  and  destroyed  the  nets,  some  being  in  use  in  the 
waters  of  the  State  and  others  being  upon  the  shore  and  recently 
used  for  fishing.  The  taking  and  destroying  of  the  nets  as  public 
nuisances  came  within  the  terms  of  New  York  statutes  for  the 
protection  of  fish.  The  jury  rendered  a  verdict  against  Steele  for 
$216,  subject  to  the  opinion  of  the  court;  and  the  court  gave 
judgment  for  that  sum  and  costs.  The  General  Term  reversed 
the  judgment  and  ordered  a  new  trial;  and  the  Court  of  Appeals 
affirmed  the  order  of  the  General  Term  and  ordered  judgment 
absolute  for  the  defendant  (119  N.  Y.  226). 

L.  H.  Brown,  for  plaintiffs  in  error;  and  E.  R.  Brown,  contra. 

1  See  Minneapolis  &  St.  Louis  Ry.  Co.  v.  Emmons,  149  U.  S.  364  (1893); 
and  Atchison,  Topeka  &  Santa  Fe  R.  Co.  v.  Matthews,  174  U.  S.  96  (1899). 

Compare  St.  Louis,  Iron  Mountain  &  Southern  Ry.  Co.  v.  Wynne  224 
U.  S.  354  (1912).  — Ed. 

2  An  abbreviated  statement  has  been  presented.  —  Ed. 


LAWTON    V.    STEELE.  681 

Brown,  J.,  .  .  .  delivered  the  opinion  of  the  court. 
This  case  involves  the  constitutionality  of  an  act  of  .  .  .  New- 
York  known  as  c.  591,  Laws  ...  of  1880,  as  amended  by  c.  317, 
Laws  of  .  .  .  1883.  .  .  . 
By  .  .  .  act  enacted  Apr.  15,  1886.  c.  141: 
"  Sec.  1.       No    person    shall  .  .  .  take    from    the    waters    of 
Henderson  Bay  or  Lake  Ontario,  within  one  mile  of  the  shore,  .  .  . 
any  fish  .  .  .  otherwise  than  by  hook  and  line  or  rod  held  in  the 
hand.  .  .  ." 
By  the  act  of  1880,  as  amended  by  the  act  of  1883 : 
"  Sec.  2.       Any    net  ...  for    taking  .  .  .  fish,  .  .  .  main- 
tained in  or  upon  any  of  the  waters  of  this  State,  or  upon  the 
shores,  ...  in   violation  of   any   existing   or   hereafter   enacted 
statutes  ...  is  hereby  declared  to  be  ...  a  public  nuisance,  and 
may  be  abated  and  summarily'  destroyed  by  any  person,  .  .  .  and 
no  action  for  damages  shall   lie  .  .  .  on  account  of  any  such" 
seizure  or  destruction." 

This  last  section  was  alleged  to  be  unconstitutional  and  void  for 
three  reasons:  1,  as  depriving  the  citizen  of  his  property  without 
due  process  of  law;  2,  as  being  in  restraint  of  the  liberty  of  the 
citizen;  3,  as  being  an  interference  with  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States. 

The  trial  court  ruled  the  first  of  the  above  propositions  in 
plaintiffs'  favor,  and  the  others  against  them,  and  judgment  was 
thereupon  entered  in  favor  of  the  plaintiffs. 

The  constitutionality  of  the  section  in  question  was,  however, 
sustained  by  the  General  Term  and  In'  the  Court  of  Appeals,  upon 
the  ground  of  its  being  a  lawful  exercise  of  the  police  power  of  the 
State. 

The  extent  and  limits  of  what  is  known  as  the  police  power  have 
been  a  fruitful  subject  of  discussion  in  the  appellate  courts  of  nearly 
every  State  in  the  Union.  It  is  universally  conceded  to  include 
everj'thing  essential  to  the  public  safety,  health,  and  morals,  and  to 
justify  the  destruction  or  abatement,  by  sunmaary  proceedings,  of 
whatever  may  be  regarded  as  a  public  nuisance.  Under  this  power 
it  has  been  held  that  the  State  may  order  the  destruction  of  a  house 
falling  to  decay  or  otherwise  endangering  the  lives  of  passers-by; 
the  demolition  of  such  as  are  in  the  path  of  a  conflagration;  the 
slaughter  of  diseased  cattle;  the  destruction  of  decayed  or  un- 
wholesome food;  the  prohibition  of  wooden  buildings  in  cities;  the 
regulation  of  railways  and  other  means  of  public  conveyance,  and 
of  interments  in  burial  grounds;    the  restriction  of  objectionable 


682         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

trades  to  certain  localities;  the  compulsory  vaccination  of  children; 
the  confinement  of  the  insane  or  those  afflicted  with  contagious 
diseases;  the  restraint  of  vagrants,  beggars,  and  hal)itual  drunk- 
ards; the  suppression  of  obscene  publications  and  houses  of  ill 
fame;  and  the  prohibition  of  gambling  houses  and  places  where 
intoxicating  liquors  are  sold.  Beyond  this,  however,  the  State  may 
interfere  wherever  the  public  interests  demand  it,  and  in  this  partic- 
ular a  large  discretion  is  necessarily  vested  in  the  legislature  to 
determine,  not  only  what  the  interests  of  the  public  require,  but 
what  measures  are  necessary  for  the  protection  of  such  interests. 
Barbier  v.  Connolly,  113  U.  S.  27;  Kidd  v.  Pearson,  128  U.  S.  1. 
T.^jiigtif^r  tjip  Stnte  in  thus  interposing  its  authority  in  behalf  of 
the  public,  it  must  appear,  first,_tluili  thn  interests  of  the  public 
gPTiprnllv^as^distinguished  from  those  of  a  particular  class,  require 
such  interference:  and,  second,  that  the  means  are  reasonal)ly 
hec^sary  for  the  accomplishment  of  tlio  purpose,  and  not  unclufy" 
oppressTveTipon  indijviduals.  The  legislature  may  not,  under  the 
guise  of  protectmg  the  public  mterests,  arbitrarily  interfere  with 
private  business,  or  impose  unusual  and  unnecessary  restrictions 
upon  lawful  occupations.  In  other  words,  its  determination  as  to 
what  is  a  proper  exercise  of  its  police  powers  is  not  final  or  con- 
clusive, but  is  subject  to  the  supervision  of  the  courts.  .  .  . 

The  preservation  of  game  and  fish,  however,  has  always  been 
treated  as  within  the  proper  domain  of  the  police  power,  and  laws 
luniting  the  season  within  w^hich  birds  and  wild  animals  may  be 
killed  or  exposed  for  sale,  and  prescribing  the  time  and  manner  in 
which  fish  may  be  caught,  have  been  repeatedly  upheld  by  the 
courts.  Thus  in  Smith  v.  Maryland,  18  How.  71,  it  was  held  that 
the  State  had  a  right  to  protect  its  fisheries  in  Chesapeake  Bay  by 
making  it  unla\A^ul  to  take  or  capture  oysters  with  a  scoop  or  drag, 
and  to  inflict  the  penalty  of  forfeiture  upon  the  vessel  employed  in 
this  pursuit.  The  avowed  object  of  the  act  was  to  prevent  the  de- 
struction of  the  oysters  by  the  use  of  particular  instruments  in  taking 
them.  "It  does  not  touch,"  said  the  court,  "the  subject  of  the  com- 
mon liberty  of  taking  oysters  save  for  the  purpose  of  guarding  it 
from  injury  to  whomsoever  it  may  belong  and  by  whomsoever  it 
may  be  enjoyed."  It  was  held  that  the  right  of  forfeiture  existed, 
even  though  the  vessel  was  enrolled  for  the  coasting  trade  under  the 
act  of  Congress.  So  in  Smith  v.  Levinus,  8  N.  Y.  472,  a  similar  act 
was  held  to  be  valid,  although  it  vested  certain  legislative  powers  in 
boards  of  supervisors,  authorizing  them  to  make  laws  for  the  pro- 
tection of  shell  and  other  fish.     In  State  v.  Roberts,  59  N.  H.  256, 


LAWTOX    V.    STEELE.  683 

which  was  an  indictment  for  taking  fish  out  of  navigable  waters  out 
of  the  season  prescribed  b}-  statute,  it  was  said  by  the  court:  "  At 
common  law  the  right  of  fishing  in  navigable  waters  was  common  to 
all.  The  taking  and  selling  of  certain  kinds  of  fish  and  game  at 
certain  seasons  of  the  year  tended  to  the  destruction  of  the  privilege 
or  right  by  the  destruction  consequent  upon  the  unrestrained 
exercise  of  the  right.  This  is  regarded  as  injurious  to  the  com- 
munity, and,  therefore,  it  is  ^\^thin  the  authority  of  the  legislature 
to  impose  restriction  and  lunitation  upon  the  time  and  manner  of 
taking  fish  and  game,  considered  valuable  as  articles  of  food  or 
merchandise.  For  this  purpose  fish  and  game  laws  are  enacted. 
The  power  to  enact  such  laws  has  long  been  exercised,  and  so  bene- 
ficially for  the  public  that  it  ought  not  now  to  be  called  into  ques- 
tion." Commonwealth  v.  Chapin,  5  Pick.  199;  McCready  v. 
Virginia,  94  U.  S.  391;  Vinton  v.  Welsh,  0  Pick.  87,  92;  Com- 
monwealth V.  Essex  County,  13  Gray,  239,  248;  Phelps  v.  Racey, 
60  X.  Y.  10;  Holyoke  Co.  v.  Lyman,  15  Wall.  500;  Gentile  v. 
State,  29  Indiana,  409;  State  v.  Lewis,  137  Ind.  344. 

As  the  waters  referred  to  in  the  act  are  unquestional)ly  within 
the  jurisdiction  of  the  State  of  Xew  York,  there  can  be  no  valid 
objection  to  a  law  regulating  the  marmer  in  which  fishing  in  these 
waters  shall  be  carried  on.  Hooker  v.  Cummings,  20  Johns.  91. 
The  duty  of  preserving  the  fisheries  of  a  State  from  extinction,  by 
prohibiiing  cxliau.stive  methods  of  fishing,  or  the  useol  such"  de- 
structive instruments  as  are  likely  to  result  in  the  extermination  of 
the  young  as  well  as  the  mature  fish,  is  as  cleiir~a^  \\\^-  fW)wpFTn 
secure  to  its  citizens,  as  far  as  possible,  a  supply  of  any  other 
wholesome  food. 

TTie  mam,  and  only  real  difficulty  connected  with  the  act  in 
question  is  in  its  declaration  tliat  any  net,  etc.,  maintained  in  vio- 
lation of  any  law  for  the  protection  of  fisheries,  is  to  be  treated  as  a 
public  nuisance,  "  and  may  be  abated  and  summarily  destroyed  by 
any  person,  and  it  shall  be  the  duty  of  each  and  every  protector 
aforesaid  and  every  game  constable  to  seize,  remove,  and  forth- 
with destroy  the  same."  The  legislature,  however,  undoubtedly 
possessed  the  power  not  only  to  prohibit  fishing  by  nets  in  these 
waters,  but  to  make  it  a  criminal  offense,  and  to  take  such  measures 
as  were  reasonable  and  necessary  to  prevent  such  offenses  in  the 
future.  It  certainly  could  not  do  this  more  effectually  than  by 
destroying  the  means  of  the  offense.  If  the  nets  were  being  used  in 
a  manner  detrimental  to  the  interests  of  the  public,  we  thmk  it  was 
within  the  power  of  the  legislature  to  declare  them  to  be  nuisances, 


684        THE   FOURTEENTH   AMENDMENT   AND    POLICE   POWER. 

and  to  authorize  the  officersjjLJi*«->^t-»|o  tn  ;|f^-v|P  tiiam  Hart  v. 
Albany,  U  Wend,  o/i;  Aleeker  v.  Van  Rensselaer,  15  Wentl.  397. 
An  act  of  the  legislature  which  has  for  its  oljject  the  preservation  of 
the  public  interests  against  the  illegal  depredations  of  private 
individuals  ought  to  be  sustained,  unless  it  is  plainly  violative  of 
the  Constitution,  or  subversive  of  private  rights.  In  this  case  there 
can  be  no  doubt  of  the  right  of  the  legislature  to  authorize  judicial 
proceedings  to  be  taken  for  the  condemnation  of  the  nets  in  ques- 
tion, and  their  sale  or  destruction  by  process  of  law.  Congress  has 
assumed  this  power  in  a  large  number  of  cases,  by  authorizing  the 
condemnation  of  property  which  has  been  made  use  of  for  the  i)ur- 
pose  of  defrauding  the  revenue.  Examples  of  this  are  vessels  ille- 
gally registered  or  owned,  or  employed  in  smuggling  or  other  illegal 
traffic;  distilleries  or  breweries  illegally  carried  on  or  operated,  and 
buildings  standing  upon  or  near  the  boundary  line  between  the 
United  States  and  another  country,  and  used  as  depots  for  smug- 
gling goods.  In  all  these  cases,  however,  the  forfeiture  was  de- 
creed by  juthcial  proceeding.  But  where  the  property  is  of  little 
value,  and  its  use  for  the  illegal  purjDose  is  clear,  the  legislature  may 
declare  it  to  be  a  nuisance,  and  subject  to  summary  abatement. 
Instances  of  this  are  the  power  to  kill  diseased  cattle;  to  pull  down 
houses  in  the  path  of  conflagrations;  the  destruction  of  decayed 
fruit  or  fish  or  unwholesome  meats,  or  infected  clothing,  obscene 
books  or  pictures,  or  instruments  which  can  only  be  used  for  illegal 
purposes.  While  the  legislature  has  no  right  arbitrarily  to  declare 
that  to  be  a  nuisance  which  is  clearly  not  so,  a  good  deal  must  be 
left  to  its  discretion  in  that  regard,  and  if  the  object  to  be  accom- 
plished is  conducive  to  the  public  interests,  it  may  exercise  a  large 
liberty  of  choice  in  the  means  employed.  Newark  Railway  v. 
Hunt,  50  N.  J.  Law,  308;  Blasier  v.  Miller,  10  Hun,  435;  Mouse's 
Case,  12  Rep.  63;  Stone  v.  New  York,  25  Wend.  157,  173;  Am. 
Print  Works  v.  Lawrence,  21  N.  J.  Law,  248;  23  N.  J.  Law,  590. 

It  is  not  easy  to  draw  the  line  between  cases  where  property 
illegally  used  may  be  destroyed  summarily  and  where  judicial 
proceedings  are  necessary  for  its  condemnation.  If  the  property 
were  of  great  value,  as,  for  instance,  if  it  were  a  vessel  employed  for 
smuggling  or  other  illegal  purposes,  it  would  be  putting  a  dangerous 
power  in  the  hands  of  a  custom  officer  to  permit  him  to  sell  or 
destroy  it  as  a  public  nuisance,  and  the  owner  would  have  good 
reason  to  complain  of  such  act,  as  depriving  him  of  his  property 
without  due  process  of  law.  But  where  the  property  is  of  trifling 
value,  and  its  destruction  is  necessary  to  effect  the  object  of  a  cer- 


LAWTON    V.    STEELE. 


685 


tain  statute,  we  think  it  is  within  the  power  of  the  legislature  to 
order  its  summary  abatement.  For  instance,  if  the  legislature 
should  prohibit  the  killing  of  fish  by  explosive  shells,  and  should 
order  the  cartridges  so  used  to  be  destroyed,  it  would  seem  like 
belittling  the  dignity  of  the  judiciary  to  reqmre  such  destruction 
to  be  preceded  by  a  solemn  condemnation  in  a  court  of  justice. 
The  same  remark  might  be  made  of  the  cards,  chips,  and  dice  of  a 

gambling  room.  ^  -      .  r,.,  . 

The  value  of  the  nets  in  question  was  but  Slo  apiece,  ihe  cost 
of  condemning  one  (and  the  use  of  one  is  as  illegal  as  the  use  of  a 
dozen)  by  judicial  proceedings,  would  largely  exceed  the  value  of 
the  net  and  doubtless  the  State  would,  in  many  cases,  be  deterred 
from  executing  the  law  by  the  expense.  They  coald  only  be  re- 
moved from  the  water  ^vith  difficulty,  and  were  liable  to  injury  in 
the  process  of  removal.  The  object  of  the  law  is  undoubtedly  a 
beneficent  one,  and  the  State  ought  not  to  be  hampered  in  its 
enforcement  bv  the  application  of  constitutional  provisions  which 
are  intended  for  the  protection  of  substantial  rights  of  property. 
It  is  evident  that  the  efficacy  of  this  statute  would  be  vey  seriously 
in^paired  bv  requiring  every  net  illegally  used  to  be  carefully  taken 
from  the  water,  carried  before  a  court  or  magistrate,  notice  of  the 
seizure  to  be  given  by  publication,  and  regular  judicial  proceedings 
to  be  instituted  for  its  condemnation. 

There  is  not  a  State  in  the  Union  which  has  not  a  constitutional 
provision  entitling  persons  charged  ^vith  crime  to  a  trial  by  jury, 
and  vet  from  time  immemorial  the  practice  has  been  to  try  persons 
charged  with  pettv  offenses  before  a  police  magistrate,  who  not 
only  passes  upon  the  question  of  guilt,  but  metes  out  the  proper 
punishment  This  has  never  been  treated  as  an  infraction  of  the 
constitution,  though  technically  a  person  may  in  this  way  be 
deprived  of  his  liberty  without  the  intervention  of  a  jury.  Lallan 
V  Wil'^on  127  U.  S.  540,  and  cases  cited.  So  the  summar>'  abate- 
ment of  nuisances  without  judicial  process  or  proceeding  was  well 
kno^^'n  to  the  common  law  long  prior  to  the  adoption  of  the  Con- 
stitution, and  it  has  never  been  supposed  that  the  constitutional 
provision  in  question  in  this  case  was  intended  to  interfere  with 
the  established  principles  in  that  regard. 

Nor  is  a  person  whose  property  is  seized  under  the  act  in  question 
^vithout  his  legal  remedy.  If  in  fact  his  property  has  been  used  m 
violation  of  the  act,  he  has  no  just  reason  to  complam;  if  not,  he 
may  replevy  his  nets  from  the  officer  seizing  them,  or,  if  they  have 
been  destroyed,  may  have  his  action  for  theu  value 


686         THE    FOURTEENTH   AMENDMENT   .VND    POLICE    POWER. 

It  is  said,  however,  that  the  nets  are  not  in  themselves  a  nuisance, 
but  are  perfectly  hiwful  acts  of  manufacture,  and  are  ordinarily 
usetl  for  a  lawful  purpose.  Tliis  is,  however,  h}-  no  means  a  con- 
clusive answer.  Many  articles,  such,  for  instance,  as  cards,  dice, 
and  other  articles  used  for  gami)linf«;  purposes,  are  jXTfectly  harm- 
less in  themselves,  but  may  become  nuisances  by  beinj^  put  to  an 
illegal  use,  and  in  such  cases  fall  within  the  ban  of  the  law  and  may 
l)e  summarily  destroyed.  It  is  true  that  this  rule  does  not  always 
follow  from  the  illegal  use  of  a  harmless  article.  A  house  may  not 
be  torn  down  because  it  is  put  to  an  illegal  use,  since  it  may  be  as 
readily  used  for  a  lawful  purpose  (Ely  v.  Supervisors,  36  N.  Y.  297), 
but  where  minor  articles  of  personal  property  are  devoted  to  such 
use  the  fact  that  they  may  be  used  for  a  lawful  purpose  would  not 
deprive  the  legislature  of  the  power  to  destroy  them.  The  power 
of  the  legislature  to  declare  that  which  is  perfectly  innocent  in  itself 
to  be  unlawful  is  beyond  question  (People  v.  West,  106  N.  Y.  293), 
and  in  such  case  the  legislature  may  annex  to  the  ])rohibited  act  all 
the  incidents  of  a  criminal  offense,  including  the  destruction  of 
property  denounced  by  it  as  a  public  nuisance.  .  .  . 

Upon  the  whole,  we  agree  Avith  the  Court  of  Appeals  in  holding 
this  act  to  be  constitutional,  and  the  judgment  of  the  Supreme 
Court  is,  therefore,  Affirmed. 

Fuller,  C.  J.  (with  whom  concurred  Field  and  Brewer,  JJ.) 
dissenting.  ... 


HOLDEN   V.   HARDY. 

Supreme  Court  of  the  United  States.     1898. 

[169  UnUed  States,  366.]  ^ 

Error  to  the  Supreme  Court  of  Utah. 

By  a  Utah  statute  (Laws,  1896,  p.  219)  it  was  enacted  that  the 
period  of  employment  of  workingmen  in  underground  mines  or 
workings,  or  in  smelters  and  all  other  institutions  for  reducing  or 
refining  ores  or  metals,  shall  be  eight  hours  a  day,  except  in  cases  of 
emergency  where  life  or  property  is  m  imminent  danger;  and  that 
any  employer  violating  the  act  shall  be  guilt}'  of  a  misdemeanor. 
In  the  court  of  a  justice  of  the  peace  of  Salt  Lake  City,  Holden  was 

^  The  statement  has  not  been  reprinted.  —  Ed. 


HOLDEN    V.    HARDY. 


687 


tried  and  com-icted  of  breach  of  this  statute  for  employing  a  miner 
ten  hours  each  day  and  also,  in  a  separate  action,  for  employing 
a  workman  in  a  concentrating  mill  twelve  hours  each  day.  The 
court  imposed  a  fine  and  ordered  imprisonment  for  fifty-seven 
days  or  until  pa^-ment  of  fine  and  costs.  Thereupon  Holden  sued 
out  a  writ  of  habeas  corpus  from  the  Supreme  Court  of  Utah,  pray- 
ing his  discharge;  but  that  court  remanded  him  to  the  custody  of 

the  sheriff.  ,  ^    r    d 

J.  M.  Wilson  and  others,  for  plaintiff  m  error;   and  C.J.  i'ence 

and  another,  contra. 

Brown,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  validity  of  the  statute  ...  is  challenged  upon  the  ground 
of  an  alleged  violation  of  the  Fourteenth  .-Vmendment  to  the  Con- 
stitution of  the  United  States,  in  that  it  abridges  the  privileges  or 
innnunities  of  citizens  of  the  United  States;  deprives  both  the 
employer  and  the  laborer  of  his  property  ^^^thout  due  process  of 
law  and  denies  to  them  the  equal  protection  of  the  laws.  As  the 
three  questions  of  abridging  their  immunities,  deprivmg  them  of 
their  propertv,  and  denying  them  the  protection  of  the  laws,  are  so 
connected  that  the  authorities  upon  each  are,  to  a  greater  or  less 
extent,  pertinent  to  the  others,  they  may  properly  be  considered 

together.  ...  .        ,         x        j      + 

\  majority  of  the  cases  which  have  since  arisen  have  turned  not 
upon  a  denial  to  the  colored  race  of  rights  therein  secured  to  them, 
but  upon  alleged  discriminations  in  matters  entirely  outside  of  the 
political  relations  of  the  parties  aggrieved. 

These  cases  mav  be  cUvnded,  generally,  into  two  classes:  First, 
where  a  state  legislature,  or  a  state  court,  is  alleged  to  have  un- 
justly discriminated  in  favor  of  or  against  a  particular  individual  or 
class  of  individuals,  as  distinguished  from  the  rest  of  the  com- 
munity, or  denied  them  the  benefit  of  due  process  of  law;  second, 
where  the  legislature  has  changed  its  general  system  of  jurispru- 
dence by  abolishing  what  had  been  previously  considered  necessary 
to  the  proper  administration  of  justice,  or  the  protection  of  the 

individual.  ...  ,      xi,    -c- 

\n  examination  of  both  these  classes  of  cases  under  the  Four- 
teenth Amendment  ^vill  demonstrate  that,  in  passing  upon  the 
validitv  of  state  legislation  under  that  amendment,  this  court  has 
not  failed  to  recognize  the  fact  that  the  law  is,  to  a  certam  extent, 
a  progressive  science;  that  in  some  of  the  States  methods  of  pro- 
cedure which  at  the  time  the  Constitution  was  adopted  were 
deemed  essential  to  the  protection  and  safety  of  the  people,  or  to 


688         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

the  liberty  of  the  citizen,  have  lieen  found  to  be  no  longer  necessary; 
that  restrictions  which  had  formerly  been  laid  upon  the  conduct  of 
individuals,  or  of  classes  of  individuals,  had  proved  detrimental  to 
their  interests;  while,  upon  the  other  hand,  certain  other  classes  of 
persons,  particularly  those  engaged  in  dangerous  or  unhealthful 
employments,  have  been  found  to  be  in  need  of  additional  pro- 
tection. Even  before  the  adoption  of  the  Constitution,  much  had 
been  done  toward  mitigating  the  severity  of  the  common  law, 
particularly  in  the  administration  of  its  criminal  branch.  The 
number  of  capital  crimes,  in  this  country  at  least,  had  been  largely 
decreased.  Trial  by  ordeal  and  by  battle  had  never  existed  here, 
and  had  fallen  into  disuse  in  England.  The  earlier  practice  of  the 
common  law,  which  denied  the  benefit  of  witnesses  to  a  person 
accused  of  felony,  had  been  abolished  by  statute,  though  so  far  as  it 
deprived  him  of  the  assistance  of  counsel  and  compulsory  process 
for  the  attendance  of  his  witnesses,  it  had  not  been  changed  in 
England.  But  to  the  credit  of  her  American  colonies,  let  it  be  said 
that  so  oppressive  a  doctrine  had  never  obtained  a  foothokl  there. 

The  present  century  has  originated  legal  reforms  of  no  less 
importance.  .  .  .  They  are  mentioned  only  for  the  purpose  of 
calling  attention  to  the  probability  that  other  changes  of  no  less 
importance  may  be  made  in  the  future,  and  that  while  the  cardinal 
principles  of  justice  are  immutable,  the  methods  by  which  justice 
is  administered  are  subject  to  constant  fluctuation,  and  that  the 
Constitution  of  the  United  States,  which  is  necessarily  and  to  a 
large  extent  inflexible  and  exceedingly  difficult  of  amenchnent, 
should  not  be  so  construed  as  to  deprive  the  States  of  the  power  to 
so  amend  their  laws  as  to  make  them  conform  to  the  wishes  of  the 
citizens  as  they  may  deem  best  for  the  public  welfare  without  bring- 
ing them  into  conflict  -with  the  supreme  law  of  the  land. 

Of  course,  it  is  impossible  to  forecast  the  character  or  extent  of 
these  changes,  but  in  view  of  the  fact  that  from  the  day  Magna 
Charta  was  signed  to  the  present  moment,  amendments  to  the 
structure  of  the  law  have  been  made  with  increasing  frequency,  it 
is  impossible  to  suppose  that  they  will  not  continue,  and  the  law  be 
forced  to  adapt  itself  to  new  conditions  of  society,  and,  particularly, 
to  the  new  relations  between  employers  and  employes,  as  they 
arise.  .  .  . 

We  do  not  wish,  however,  to  be  understood  as  holding  that  this 
power  is  unlimited.  While  the  people  of  each  State  may  doubtless 
adopt  such  systems  of  laws  as  best  conform  to  their  own  traditions 
and  customs,  the  people  of  the  entire  country  have  laid  down  in  the 


HOLDEN   V.    HARDY.  689 

Constitution  of  the  United  States  certain  fundamental  principles 
to  which  each  member  of  the  Union  is  bound  to  accede  as  a  condi- 
tion of  its  admission  as  a  State.  Thus,  the  United  States  are 
bound  to  guarantee  to  each  State  a  republican  form  of  government, 
and  the  tenth  section  of  the  first  article  contains  certain  other  speci- 
fied limitations  upon  the  power  of  the  several  States,  the  object  of 
which  was  to  secure  to  Congress  paramount  authority  with  respect 
to  matters  of  universal  concern.  In  addition,  the  Fourteenth 
Amendment  contains  a  sweeping  provision  forbidding  the  States 
frt)m  abridging  the  privileges  and  immunities  of  citizens  of  the 
United  States,  and  denying  them  the  benefit  of  due  process  or 
equal  protection  of  the  laws. 

This  court  has  never  attempted  to  define  with  precision  the 
words  "  due  process  of  law,"  nor  is  it  necessary  to  do  so  in  this  case. 
It  is  sufficient  to  say  that  there  are  certain  immutable  principles  of 
justice  which  inhere  in  the  very  idea  of  free  government  which  no 
member  of  the  Union  may  disregard,  as  that  no  man  shall  be  con- 
demned in  his  person  or  property  without  due  notice  and  an  oppor- 
tunity of  being  heard  in  his  defense.  ... 

As  the  possession  of  property,  of  which  a  person  cannot  be 
deprived,  doubtless  implies  that  such  property  may  be  acquired, 
it  is  safe  to  say  that  a  state  law  which  undertakes  to  deprive  any 
class  of  persons  of  the  general  power  to  acquire  property  would  also 
be  obnoxious  to  the  same  provision.  Indeed,  we  may  go  a  step 
further,  and  say  that,  as  property  can  only  be  legally  acquired  as 
between  living  persons  by  contract,  a  general  prohibition  against 
entering  into  contracts  with  respect  to  property,  or  having  as  their 
object  the  acquisition  of  property,  would  be  equally  invalid. 

The  latest  utterance  of  this  court  upon  this  subject  is  containetl 
in  the  case  of  Allgeyer  v.  Louisiana,  165  U.  S.  578,  591,  in  which  it 
was  held  that  an  act  of  Louisiana  which  prohibited  individuals 
within  the  State  from  making  contracts  of  insurance  with  corpora- 
tions doing  business  in  New  York,  was  a  violation  of  the  Fourteenth 
Amendment.  In  delivering  the  opinion  of  the  court,  Mr.  Justice 
Peckham  remarked:  "  In  the  privilege  of  pursuing  an  ordinary- 
calling  or  trade,  and  of  acquiring,  holding  and  selling  property, 
must  be  embraced  the  right  to  make  all  proper  confracts  in  relation 
thereto,  and,  although  it  may  be  conceded  that  this  right  to  con- 
tract in  relation  to  persons  or  property,  or  to  do  business  within  the 
jurisdiction  of  the  State,  may  be  regulated  and  sometunes  pro- 
hibited, when  the  contracts  or  business  conflict  with  the  policy  of 
the  State  as  contained  in  its  statutes,  yet  the  power  does  not  and 


690         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

cannot  extend  to  prohiljiting  a  citizen  from  nuikinj^  contracts  of 
the  nature  involved  in  this  case  outside  of  tlie  limits  and  juriselic- 
tion  of  the  State,  and  which  are  also  to  be  performed  outside  of 
such  jurisdiction." 

This  right  of  contract,  however,  is  itself  subject  to  certain  limi- 
tations which  the  State  may  lawfully  impose  in  the  exercise  of  its 
police  powers.  While  this  power  is  inherent  in  all  govermnents,  it 
has  doubtless  been  greatly  expanded  in  its  application  during  the 
past  century,  owing  to  an  enormous  increase  in  the  number  of 
occupations  which  are  dangerous,  or  so  far  detrimental  to  tHe 
health  of  employes  as  to  demand  special  precautions  for  their  well- 
being  and  protection,  or  the  safety  of  adjacent  property.  .  .  . 

This  power  legitimately  exercised  can  neither  be  limitctl  by 
contract  nor  bartered  away  by  legislation. 

While  this  power  is  necessarily  inlierent  in  every  form  of  govern- 
ment, it  was,  prior  to  the  adoption  of  the  Constitution,  but  spar- 
ingly used  in  this  country.  As  we  were  then  almost  purely  an 
agricultural  people,  the  occasion  for  any  special  protection  of  a 
particular  class  did  not  exist.  Certain  profitable  employments, 
such  as  lotteries  and  the  sale  of  intoxicating  liquors,  which  were 
then  considered  to  Ijc  legitimate,  have  since  fallen  untler  the  l)an 
of  public  opinion,  and  are  now  either  altogether  prohibited,  or 
made  subject  to  stringent  police  regulations.  The  power  to  do  this 
has  been  repeatedly  affirmed  by  this  court.  Stone  v.  Mississippi, 
101  U.  S.  814;  Douglas  v.  Kentucky,  168  U.  S.  488;  Giozza  v. 
Tiernan,  148  U.  S.  657;  Kidd  v.  Pearson,  128  U.  S.  1;  Crowley  v. 
Christensen,  137  U.  S.  86. 

While  the  business  of  mining  coal  and  manufacturing  iron  began 
in  Pennsylvania  as  early  as  1716,  and  in  Virginia,  North  Carolina 
and  Massachusetts  even  earlier  than  this,  both  mining  and  manu- 
facturing were  carried  on  in  such  a  limited  way  and  by  such 
primitive  methods  that  no  special  laws  were  considered  necessary, 
prior  to  the  adoption  of  the  Constitution,  for  the  protection  of  the 
operatives;  but,  in  the  vast  proportions  which  these  industries 
have  since  assumed,  it  has  been  found  that  they  can  no  longer  be 
carried  on  with  due  regard  to  the  safety  and  health  of  those  engaged 
in  them,  without  special  protection  against  the  dangers  necessarily 
incident  to  these  employments.  In  consequence  of  this,  laws  have 
been  enacted  in  most  of  the  States  designed  to  meet  these  exigencies 
and  to  secure  the  safety  of  persons  peculiarly  exposed  to  these 
dangers.  Within  this  general  category  are  ordinances  providing 
for  fire  escapes  for  hotels,  theatres,  factories  and  other  large  build- 


HOLD  EN    v.    HARDY.  691 

ings,  a  municipal  inspection  of  boilers,  and  appliances  designed  to 
secure  passengers  upon  railways  and  steamboats  against  the 
dangers  necessarily  incident  to  these  methods  of  transportation. 
In  States  where  manufacturing  is  carried  on  to  a  large  extent,  pro- 
vision is  made  for  the  protection  of  dangerous  machinery  against 
accidental  contact,  for  the  cleanliness  and  ventilation  of  working 
rooms,  for  the  guarding  of  well  holes,  stairways,  elevator  shafts  and 
for  the  employment  of  sanitary  appliances.  In  others,  where 
mining  is  the  principal  industry,  special  provision  is  made  for  the 
shoring  up  of  dangerous  walls,  for  ventilation  shafts,  bore  holes, 
escapement  shafts,  means  of  signalling  the  surface,  for  the  supply 
of  fresh  air  and  the  elimination,  as  far  as  possible,  of  dangerous 
gases,  for  safe  means  of  hoisting  and  lowering  cages,  for  a  lunitation 
upon  the  number  of  persons  permitted  to  enter  a  cage,  that  cages 
shall  be  covered,  and  that  there  shall  be  fences  and  gates  around  the 
top  of  shafts,  besides  other  similar  precautions.  .  .  . 

These  statutes  have  been  repeatedly  enforced  by  the  courts  of 
the  several  States;  their  validity  assumed,  and,  so  far  as  we  are 
informed,  they  have  been  uniformly  held  to  be  constitutional.  .  .  . 
Upon  the  principles  aljove  stated,  we  think  the  act  in  question 
may  be  sustained  as  a  valid  exercise  of  the  police  power  of  the  State. 
The  enactment  does  not  profess  to  limit  the  hours  of  all  workmen, 
but  merely  those  who  are  employed  in  underground  mines,  or  in  the 
smelting,  reduction  or  refining  of  ores  or  metals.  These  employ- 
ments, when  too  long  pursued,  the  legislature  has  judged  to  be 
detrimental  to  the  health  of  the  employes,  and,  so  long  as  there  are 
reasonable  grounds  for  Ijelieving  that  this  is  so,  its  decision  upon 
this  subject  camiot  be  reviewetl  by  the  federal  courts. 

While  the  general  experience  of  mankind  may  justify  us  in  believ- 
ing that  men  may  engage  in  ordinary  employments  more  than 
eight  hours  per  day  \nthout  injury  to  their  health,  it  does  not 
follow  that  labor  for  the  same  length  of  time  is  innocuous  when 
carried  on  beneath  the  surface  of  the  earth,  where  the  operative  is 
deprived  of  fresh  air  and  sunlight,  and  is  frequently  subjected  to 
foul  atmosphere  and  a  very  high  temperature,  or  to  the  influence  of 
noxious  gases,  generated  by  the  processes  of  refining  or  smelting. . . . 
The  legislature  has  also  recognized  the  fact,  which  the  experience 
of  legislators  in  many  States  has  corroborated,  that  the  proprietors 
of  these  establishments  and  their  operatives  do  not  stand  upon  an 
equality,  and  that  their  interests  are,  to  a  certain  extent,  conflict- 
ing. The  former  naturally  desire  to  obtain  as  much  labor  as 
possible  from  their  employes,  while  the  latter  are  often  induced  by 


692         THE   FOURTEENTH   AMENDMENT   AND   POLICE    POWER. 

the  fear  of  discharge  to  conform  to  regulations  which  their  judg- 
ment, fairly  exercised,  would  pronounce  to  be  detrimental  to  their 
health  or  strength.  In  other  words,  the  proprietors  lay  down  the 
rules  and  the  laborers  are  practically  constrained  to  obey  them. 
In  such  cases  self-interest  is  often  an  unsafe  guide,  and  the  legisla- 
ture may  properly  interpose  its  authority. 

It  may  not  be  improper  to  suggest  in  this  connection  that  al- 
though the  prosecution  in  this  case  was  against  the  employer  of 
labor,  who  apparently  under  the  statute  is  the  only  one  liable,  his 
defense  is  not  so  much  that  his  right  to  contract  has  been  infringed 
upon,  but  that  the  act  works  a  peculiar  hardship  to  his  employes, 
whose  right  to  labor  as  long  as  they  please  is  alleged  to  be  thereby 
violated.  The  argument  would  certainly  come  with  better  grace 
and  greater  cogency  from  the  latter  class.  But  the  fact  that  both 
parties  are  of  full  age  and  competent  to  contract  does  not  neces- 
sarily deprive  the  State  of  the  power  to  interfere  where  the  parties 
do  not  stand  upon  an  equalit^y,  or  where  the  public  health  demands 
that  one  party  to  the  contract  shall  be  protected  against  himself. 
"  The  State  still  retains  an  interest  in  his  welfare,  however  reckless 
he  may  be.  The  whole  is  no  greater  than  the  sum  of  all  the  parts, 
and  when  the  individual  health,  safety,  and  welfare  are  sacrificed  or 
neglected,  the  State  must  suffer." 

We  have  no  disposition  to  criticise  the  many  authorities  which 
hold  that  state  statutes  restricting  the  hours  of  labor  are  uncon- 
stitutional. Indeed,  we  are  not  called  upon  to  express  an  opinion 
upon  this  subject.  It  is  sufficient  to  say  of  them,  that  they  have  no 
application  to  cases  where  the  legislature  had  adjudged  that  a 
limitation  is  necessary  for  the  preservation  of  the  health  of  em- 
plo3^es,  and  there  are  reasonable  grounds  for  believing  that  such 
determination  is  supported  by  the  facts.  The  question  in  each 
case  is  whether  the  legislature  has  adopted  the  statute  in  exercise 
of  a  reasonable  discretion,  or  whether  its  action  be  a  mere  excuse 
for  an  unjust  discrimination,  or  the  oppression,  or  spoliation  of  a 
particular  class.  The  distinction  between  these  two  different 
classes  of  enactments  cannot  be  better  stated  than  by  a  comparison 
of  the  views  of  this  court  found  in  the  opinions  in  Barbier  v.  Con- 
nolly, 113  U.  S.  27,  and  Soon  Hing  v.  Crowley,  113  U.  S.  703,  with 
those  later  expressed  in  Yick  Wo  v.  Hopkins,  118  U.  S.  356. 

We  are  of  opinion  that  the  act  in  question  was  a  valid  exercise  of 
the  police  power  of  the  State,  and  the  judgments  of  the  Supreme 
Court  of  Utah  are,  therefore,  Affirmed. 

Brewer  and  Peckham,  JJ.,  dissented. 


MISSOURI,    KANSAS    &    TEXAS   RY.    CO.    V.    MAY.  693 

MISSOURI,   KANSAS   &   TEXAS   RY.   CO.   v.   MAY. 

Supreme  Court  of  the  United  States.     1904. 

[194  United  States,  267.]  ^ 

Error  to  the  County  Court  of  Bell  Count}',  Texas. 

James  Hagerman  and  others,  for  plaintiff  in  error;  and  no  ap- 
pearance or  brief  contra. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  a  penalty  of  twenty-five  dollars, 
brought  by  the  o\\Tier  of  a  farm  contiguous  to  the  railroad  of  the 
plaintiff  in  error,  on  the  ground  that  the  latter  has  allowed  John- 
son grass  to  mature  and  go  to  seed  upon  its  road.  The  penalty  is 
given  to  contiguous  owners  by  a  Texas  statute  of  1901,  ch.  117, 
directed  solely  against  railroad  companies  for  permitting  such  grass 
or  Russian  thistle  to  go  to  seed  upon  their  right  of  way,  subject, 
however,  to  the  condition  that  the  plaintiff  has  not  done  the  same 
thing.  The  case  is  brought  here  on  the  ground  that  the  statute  is 
contrary  to  the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States. 

It  is  admitted  that  Johnson  grass  is  a  menace  to  crops,  that  it  is 
propagated  only  by  seed,  and  that  a  general  regulation  of  it  for  the 
protection  of  farming  would  be  valid.  It  is  admitted  also  that 
legislation  may  be  directed  against  a  class  when  any  fair  ground  for 
the  discrimination  exists.  But  it  is  said  that  this  particular  sub- 
jection of  railroad  companies  to  a  liability  not  imposed  on  other 
owners  of  land  on  which  Johnson  grass  may  grow,  is  so  arbitrary  as 
to  amount  to  a  denial  of  the  equal  protection  of  the  laws.  There  is 
no  dispute  about  general  principles.  The  question  is  whether  this 
case  lies  on  one  side  or  the  other  of  a  line  which  has  to  be  worked  out 
between  cases  differing  only  in  degree.  With  regard  to  the  manner 
in  which  such  a  question  should  be  approached,  it  is  obvious  that 
the  legislature  is  the  only  judge  of  the  policy  of  a  proposed  dis- 
crimination. The  principle  is  similar  to  that  which  is  established 
with  regard  to  a  decision  of  Congress  that  certain  means  are  neces- 
sary and  proper  to  carry  out  one  of  its  express  powers.  McCuUoch 
V.  :Maryland,  4  Wheat.  316.  Wlien  a  state  legislature  has  declared 
that  in  its  opinion  policy  requires  a  certain  measure,  its  action 
should  not  be  disturbed  by  the  courts  under  the  Fourteenth 
Amendment,  unless  they  can  see  clearly  that  there  is  no  fair  reason 

1  The  reporter's  short  statement  has  been  omitted.  —  Ed. 


694         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

for  the  law  that  would  not  require  with  equal  force  its  extension  to 
others  whom  it  loaves  untouchetl. 

Approaching  the  question  in  this  wa}'  we  feel  unable  to  say  that 
the  law  before  us  may  not  have  been  justified  by  local  conditions. 
It  would  have  been  more  obviously  fair  to  extend  the  regulation  at 
least  to  highways.  But  it  may  have  been  found,  for  all  that  we 
know,  that  the  seed  of  Johnson  grass  is  dropped  from  the  cars  in 
such  quantities  as  to  cause  special  troul)le.  It  may  be  that  the 
neglected  strips  occupied  by  railroads  afford  a  ground  where 
noxious  weeds  especially  flourish,  and  that  whereas  self-interest 
leads  the  ownersof  farms  to  keep  down  pests,  the  railroad  companies 
have  done  nothing  in  a  matter  which  concerns  their  neighbors  only. 
Other  reasons  may  be  imagined.  Great  constitutional  provisions 
must  be  administered  with  caution.  Some  play  must  be  allowed 
for  the  joints  of  the  machine,  and  it  must  be  remembered  that 
legislatures  are  ultimate  guardians  of  the  liberties  and  welfare  of 
the  people  in  quite  as  great  a  degree  as  the  courts. 

Judgment  affirmed. 

Brewer,  J.,  concurs  in  the  judgment. 

Brown,  J.,  dissenting.  .  .  . 


JACOBSON  V.   MASSACHUSETTS. 
Supreme  Court  of  the  United  States.     1905. 
[197  United  Slates,  11.]  ^ 

Error  to  the  Supreme  Judicial  Court  of  Massachusetts. 

Jacobson  was  proceeded  against  by  criminal  complaint  in  an 
inferior  court  of  Massachusetts  for  refusing  to  comply  with  a 
regulation  of  the  Board  of  Health  of  Cambridge,  which,  on  July  17, 
1902,  acting  under  the  authority  of  a  statute  (Mass.  Revised  Laws, 
c.  75,  §  137),  had  required  the  vaccination  and  revaccination  of  all 
inliabitants  who  had  not  been  successfully  vaccinated  since  March 
1,  1897,  and  had  provided  free  vaccination.  The  defendant  made 
numerous  offers  of  evidence;  but  the  court  ruled  that  the  facts 
offered  to  be  proved  were  immaterial.  The  defendant  asked  the 
comt  to  charge  the  jury  that  the  statute  conflicted  with  the  Pre- 

1  An  abbreviated  statement  has  been  presented.  —  Ed. 


JACOBSON    V.    MASSACHUSETTS.  695 

amble  of  the  Constitution  of  the  United  States  and  with  the 
Fourteenth  Amendment  and  was  opposed  to  the  spirit  of  the  Con- 
stitution; but  the  court  refused  and  instructed  the  jury  that 
if  they  believed  the  evidence  offered  by  the  Commonwealth  the}' 
would  be  warranted  in  finding  a  verchct  of  guilty.  A  verdict  of 
guilty  was  returned;  and  the  case  was  continued  for  the  opinion  of 
the  Supreme  Judicial  Court,  which  overruled  all  the  exceptions  and 
sustained  the  trial  court,  whereupon  tlie  defendant  was  sentenced 
to  pay  a  fine  of  five  dollars. 

G.  F.  Williams  and  another,  for  plaintiff  in  error;  and  F.  H. 
Nash  and  H.  Parker,  Attorney'  General  of  ^Massachusetts,  contra. 

Harlan,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

We  pass  without  extended  discussion  the  suggestion  that  the 
particular  section  of  the  statute  of  ^Massachusetts  now  in  question 
(§  137,  c.  75)  is  in  derogation  of  rights  secured  by  the  Preamble  of 
the  Constitution  of  the  United  States.  Although  that  Preamble 
indicates  the  general  purposes  for  which  the  people  ordained  and 
established  the  Constitution,  it  has  never  been  regarded  as  the 
source  of  any  substantive  power  conferred  on  the  Government  of 
the  United  States  or  on  any  of  its  Departments.  Such  powers 
embrace  only  those  expressly  granted  in  the  body  of  the  Constitu- 
tion and  such  as  may  be  implied  from  those  so  granted.  Although, 
therefore,  one  of  the  declared  objects  of  the  Constitution  was  to 
secure  the  blessings  of  liberty  to  all  under  the  sovereign  jurisdiction 
and  authority  of  the  United  States,  no  power  can  be  exerted  to 
that  end  by  the  United  States  unless,  apart  from  the  Preamble,  it 
be  found  in  some  express  delegation  of  power  or  in  some  power  to  be 
properly  implied  therefrom.      1  Story's  Const.  §  462. 

We  also  pass  without  discussion  the  suggestion  that  the  above 
section  of  the  statute  is  opposed  to  the  spirit  of  the  Constitution. 
Undoubtedly,  as  observed  by  Chief  Justice  Marshall,  speaking  for 
the  court  in  Sturges  v.  Crowminshield,  -i  Wheat.  122,  202,  "  the 
spirit  of  an  instrument,  especially  of  a  constitution,  is  to  be  re- 
spected not  less  than  its  letter,  yet  the  spirit  is  to  be  collected 
chiefly  from  its  words."  We  have  no  need  in  this  case  to  go 
beyond  the  plain,  obvious  meaning  of  the  words  in  those  provisions 
of  the  Constitution  which,  it  is  contended,  must  control  our  deci- 
sion. 

What,  according  to  the  judgment  of  the  state  court,  is  the  scope 
and  effect  of  the  statute  ?  What  results  were  intended  to  be 
accomplished  by  it  ?     These  questions  must  be  answered. 


696         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

The  Supreme  Judicial  Court  of  Massachusetts  said  in  the  present 
case:  "  Let  us  consider  the  offer  of  evidence  which  was  made  by 
the  defendant  Jacobson.  The  ninth  of  the  propositions  which  he 
offered  to  prove,  as  to  what  vaccination  consists  of,  is  nothing  more 
than  a  fact  of  common  knowledge,  upon  which  the  statute  is 
founded,  and  proof  of  it  was  unnecessary  and  immaterial.  The 
thirteenth  and  fourteenth  involved  matters  depending  upon  his 
personal  opinion,  which  could  not  be  taken  as  correct,  or  given 
effect,  merely  because  he  made  it  a  ground  of  refusal  to  comply  with 
the  requirement.  Moreover,  his  views  could  not  affect  the  validity 
of  the  statute,  nor  entitle  him  to  be  excepted  from  its  provisions. 
Commonwealth  v.  Connelly,  163  Massachusetts,  539;  Common- 
wealth V.  Has,  122  Massachusetts,  40;  Reynolds  v.  United  States, 
98  U.  S.  145;  Rcgina  v.  Downes,  13  Cox  C.  C.  111.  The  other 
eleven  propositions  all  relate  to  alleged  injurious  or  dangerous 
effects  of  vaccination.  The  defendant '  offered  to  prove  and  show 
by  competent  evidence  '  these  so-called  facts.  Each  of  them,  in  its 
nature,  is  such  that  it  cannot  be  stated  as  a  truth,  otherwise  than 
as  a  matter  of  opinion.  The  only  '  competent  evidence  '  that  could 
be  presented  to  the  court  to  prove  these  propositions  was  the  testi- 
mony of  experts,  giving  their  opinions.  It  would  not  have  been 
competent  to  introduce  the  medical  history  of  individual  cases. 
Assuming  that  medical  experts  could  have  been  found  who  would 
have  testified  in  support  of  these  propositions,  and  that  it  had 
become  the  duty  of  the  judge,  in  accordance  with  the  law  as  stated 
in  Commonwealth  v.  Anthes,  5  Gray,  185,  to  instruct  the  jury  as  to 
whether  or  not  the  statute  is  constitutional,  he  would  have  been 
obliged  to  consider  the  evidence  in  connection  with  facts  of  com- 
,non  knowledge,  which  the  court  will  always  regard  in  passing  upon 
the  constitutionality  of  a  statute.  He  would  have  considered  this 
testunony  of  experts  in  connection  with  the  facts  that  for  nearly  a 
century  most  of  the  members  of  the  medical  profession  have 
regarded  vaccination,  repeated  after  intervals,  as  a  preventive  of 
smallpox;  that  while  they  have  recognized  the  possibility  of  injury 
to  an  individual  from  carelessness  in  the  performance  of  it,  or  even 
in  a  conceivable  case  T\dthout  carelessness,  they  generally  have 
considered  the  risk  of  such  an  injury  too  small  to  be  seriously 
weighed  as  against  the  benefits  coming  from  the  discreet  and  proper 
use  of  the  preventive;  and  that  not  only  the  medical  profession 
and  the  people  generally  have  for  a  long  time  entertained  these 
opinions,  but  legislatures  and  courts  have  acted  upon  them  with 
general  unanimity.     If  the  defendant  had  been  permitted  to  intro- 


JACOBSON    V.    MASSACHUSETTS.  697 

duce  such  expert  testimony  as  he  had  in  support  of  these  several 
propositions,  it  could  not  have  changed  the  result.  It  would  not 
have  justified  the  court  in  holding  that  the  legislature  had  trans- 
cended its  power  in  enacting  this  statute  on  their  judgment  of 
what  the  welfare  of  the  people  demands."  Commonwealth  v. 
Jacobson,  183  Massachusetts,  242. 

While  the  mere  rejection  of  defendant's  offers  of  proof  does  not 
strictly  present  a  federal  question,  we  may  properly  regard  the 
exclusion  of  evidence  upon  the  ground  of  its  incompetency  or 
immateriality  under  the  statute  as  showing  what,  in  the  opinion  of 
the  state  court,  is  the  scope  and  meaning  of  the  statute.  Taking 
the  above  observations  of  the  state  court  as  indicating  the  scope 
of  the  statute  —  and  such  is  our  duty,  Leffingwell  v.  Warren,  2 
Black,  599,  603;  Morley  v.  Lake  Shore  Railway  Co.,  146  U.  S.  162, 
167;  Tullis  v.  L.  E.  &  W.  R.  R.  Co.,  175  U.  S.  348;  W.  W.  Cargill 
Co.  V.  Minnesota,  180  U.  S.  452,  466  —  we  assume  for  the  purposes 
of  the  present  inquiry  that  its  provisions  require,  at  least  as  a 
general  rule,  that  adults  not  under  guardianship  and  remaining 
\dthin  the  limits  of  the  city  of  Cambridge  must  submit  to  the 
regulation  adopted  by  the  Board  of  Health.  Is  the  statute,  so 
construed,  therefore,  inconsistent  \vith  the  liberty  which  the  Con- 
stitution of  the  United  States  secures  to  every  person  against 
deprivation  by  the  State  ? 

The  authority  of  the  State  to  enact  this  statute  is  to  be  referred 
to  what  is  commonly  called  the  police  power  —  a  power  which  the 
State  did  not  surrender  when  becoming  a  member  of  the  Union 
under  the  Constitution.      Although  this  court  has  refrained  from 
any  attempt  to  define  the  limits  of  that  power,  yet  it  has  distinctly 
recognized  the  authority  of  a  State  to  enact  quarantine  laws  and 
'•  health  laws  of  every  description  ";  indeed,  all  laws  that  relate  to 
matters  completely  withui  its  territory  and  which  do  not  by  their 
necessary-  operation  affect  the  people  of  other  States.     According 
to  settled  principles  the  police  power  of  a  State  must  be  held  to 
embrace,  at  least,  such  reasonable  regulations  established  directly 
by  legislative  enactment  as  will  protect  the  public  health  and  the 
public  safety.      Gibbons  v.  Ogden,  9  Wheat.   1,  203;    Railroad 
Company  v.  Husen,  95  U.  S.  465,  470;   Beer  Company  v.  Massa- 
chusetts, 97  U.  S.  25;  New  Orleans  Gas  Co.  v.  Louisiana  Light  Co., 
115  U.  S.  650,  661;  Lawi:on  v.  Steele,  152  U.  S.  133.     It  is  equally 
true  that  the  State  may  invest  local  bodies  called  into  existence  for 
purposes  of  local  administration  Avith  authority  in  some  appro- 
priate way  to  safeguard  the  public  health  and  the  public  safety. 


698        THE    FOURTEENTH   AMENDMENT  AND    POLICE   POWER. 

The  mode  or  manner  in  which  those  results  are  to  be  accomplished 
is  within  the  discretion  of  the  State,  subject,  of  course,  so  far  as 
federal  power  is  concerned,  only  to  the  condition  that  no  rule 
prescribed  by  a  State,  nor  any  regulation  adopted  by  a  local  govern- 
mental agency  acting  under  the  sanction  of  state  legislation,  shall 
contravene  the  Constitution  of  the  United  States  or  infringe  any 
right  granted  or  secured  by  that  instrument.  .  .  . 

We  come,  then,  to  inquire  whether  any  right  given,  or  secured  by 
the  Constitution,  is  invaded  by  the  statute  as  interpreted  by  the 
state  court.  The  defendant  insists  that  his  liberty  is  invaded 
when  the  State  subjects  him  to  fine  or  unprisomnent  for  neglecting 
or  refusing  to  submit  to  vaccination;  that  a  compulsory  vaccina- 
tion law  is  unreasonable,  arbitrary  and  oppressive,  and,  therefore, 
hostile  to  the  inlierent  right  of  every  freeman  to  care  for  his  own 
body  and  health  in  such  way  as  to  him  seems  best;  and  that  the 
execution  of  such  a  law  against  one  who  objects  to  vaccination,  no 
matter  for  what  reason,  is  nothing  short  of  an  assault  upon  his  per- 
son. But  the  liberty  secured  by  the  Constitution  of  the  United 
States  to  every  person  within  its  jurisdiction  does  not  import  an 
absolute  right  in  each  person  to  be,  at  all  tunes  and  in  all  circum- 
stances, wholly  freed  from  restraint.  There  are  manifold  re- 
straints to  which  every  person  is  necessarily  subject  for  the  common 
good.  On  any  other  basis  organized  society  could  not  exist  with 
safety  to  its  members.  Society  based  on  the  rule  that  each  one  is  a 
law  unto  hunself  would  soon  be  confronted  w^th  disorder  and 
anarchy.  Real  liberty  for  all  could  not  exist  under  the  operation 
of  a  principle  which  recognizes  the  right  of  each  individual  person  to 
use  his  own,  whether  in  respect  of  his  person  or  his  property,  re- 
gardless of  the  injury  that  may  be  done  to  others.  .  .  . 

It  is  to  be  observed  that  the  legislature  of  "Massachusetts  required 
the  inhabitants  of  a  city  of  town  to  be  vaccinated  only  when,  in 
the  opinion  of  the  Board  of  Health,  that  was  necessary  for  the 
public  health  or  the  public  safety.  The  authority  to  determine  for 
all  what  ought  to  be  done  in  such  an  emergency  must  have  been 
lodged  somewhere  or  in  some  body;  and  surely  it  was  appropriate 
for  the  legislature  to  refer  that  question,  in  the  first  instance,  to  a 
Board  of  Health,  composed  of  persons  residing  in  the  locality 
affected  and  appointed,  presumably,  because  of  their  fitness  to 
determine  such  questions.  To  invest  such  a  body  with  authority 
over  such  matters  was  not  an  unusual  nor  an  unreasonable  or 
arbitrary  requirement.  .  .  .  When  the  regulation  in  question  was 
adopted,  smallpox,  according  to  the  recitals  in  the  regulation 


JACOBSON   V.   MASSACHUSETTS.  699 

adopted  by  the  Board  of  Health,  was  prevalent  to  some  extent  in 
the  city  of  Cambridge  and  the  disease  was  increasing.  If  such  was 
the  situation  —  and  nothing  is  asserted  or  appears  in  the  record 
to  the  contrary  —  if  we  are  to  attach  any  value  whatever  to  the 
knowledge  which,  it  is  safe  to  affirm,  is  common  to  all  civilized 
peoples  touching  smallpox  and  the  methods  most  usually  em- 
ployed to  eradicate  that  disease,  it  cannot  be  adjudged  that  the 
present  regulation  of  the  Board  of  Health  was  not  necessary  in 
order  to  protect  the  public  health  and  secure  the  public  safety. 
Smallpox  being  prevalent  and  increasing  at  Cambridge,  the  court 
would  usurp  the  functions  of  another  branch  of  government  if  it 
adjudged,  as  matter  of  law,  that  the  mode  adopted  under  the 
sanction  of  the  State,  to  protect  the  people  at  large,  was  arbitrary 
and  not  justified  by  the  necessities  of  the  case.  .  .  . 

It  is  said,  however,  that  the  statute,  as  interpreted  by  the  state 
court,  although  making  an  exception  in  favor  of  children  certified 
by  a  registered  physician  to  be  unfit  subjects  for  vaccination, 
makes  no  exception  in  the  case  of  adults  in  like  condition.  But 
this  cannot  be  deemed  a  denial  of  the  equal  protection  of  the  laws 
to  adults;  for  the  statute  is  applicable  equall}^  to  all  in  like  condi- 
tion and  there  are  obviously  reasoiLS  why  regulations  may  be 
appropriate  for  adults  which  could  not  be  safely  applied  to  persons 
of  tender  years. 

Looking  at  the  propositions  embodied  in  the  defendant's  rejected 
offers  of  proof  it  is  clear  that  they  are  more  formidable  by  their 
number  than  by  their  inherent  value.  Those  offers  in  the  main 
seem  to  have  had  no  purpose  except  to  state  the  general  theory  of 
those  of  the  medical  profession  who  attach  little  or  no  value  to 
vaccination  as  a  means  of  preventing  the  spread  of  smallpox  or 
who  think  that  vaccination  causes  other  diseases  of  the  bod}'. 
What  everybody  knows  the  court  must  know,  and  therefore  the 
state  court  judicially  knew,  as  this  court  knows,  that  an  opposite 
theor}^  accords  with  the  common  belief  and  is  maintained  by  high 
medical  authority.  We  must  assume  that  when  the  statute  in 
question  was  passed,  the  legislature  of  Massachusetts  was  not 
unaware  of  these  opposing  theories,  and  was  compelled,  of  neces- 
sity, to  choose  between  them.  It  was  not  compelled  to  commit  a 
matter  involving  the  public  health  and  safety  to  the  final  decision 
of  a  court  or  jury.  It  is  no  part  of  the  function  of  a  court  or  a  jury 
to  determine  which  one  of  two  modes  was  likely  to  be  the  most 
effective  for  the  protection  of  the  public  against  disease.  That 
was  for  the  legislative  department  to  determine  in  the  light  of  all 


700         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

the  information  it  had  or  could  obtain.  It  could  not  properly 
abdicate  its  function  to  guard  the  public  health  and  safety.  The 
state  legislature  proceeded  upon  the  theory  which  recognized 
vaccination  as  at  least  an  effective  if  not  the  best  known  way  in 
which  to  meet  and  suppress  the  evils  of  a  smallpox  epidemic  that 
imperilled  an  entire  population.  Upon  what  sound  principles  as 
to  the  relations  existing  between  the  different  departments  of 
government  can  the  court  review  this  action  of  the  legislature  ? 
If  there  is  any  such  power  in  the  judiciary  to  review  legislative 
action  in  respect  of  a  matter  affecting  the  general  welfare,  it  can 
only  be  when  that  which  the  legislature  has  done  comes  within  the 
rule  that  if  a  statute  purporting  to  have  been  enacted  to  protect  the 
public  health,  the  public  morals  or  the  public  safety ,  has  no  real  or 
substantial  relation  to  those  objects,  or  is,  beyond  all  question,  a 
plain,  palpable  invasion  of  rights  secured  by  the  fundamental  law, 
it  is  the  duty  of  the  courts  to  so  adjudge,  and  thereby  give  effect  to 
the  Constitution.  Mugler  v.  Kansas,  123  U.  S.  623,  661;  Minne- 
sota V.  Barber,  136  U.  S.  313,  320;  Atkin  v.  Kansas,  191  U.  S.  207, 

223. 

Whatever  may  be  thought  of  the  expediency  of  this  statute,  it 
cannot  be  affirmed  to  be,  beyond  question,  in  palpable  conflict  with 
the  Constitution.  Xor,  in  view  of  the  methods  employ  ed  to  stamp 
out  the  disease  of  smallpox,  can  any  one  confidently  assert  that  the 
means  prescribed  by  the  State  to  that  end  has  no  real  or  substantial 
relation  to  the  protection  of  the  public  health   and  the  public 

safety.  .  .  . 

The  defendant  did  not  offer  to  prove  that,  by  reason  of  his  then 
condition,  he  was  in  fact  not  a  fit  subject  for  vaccination.  .  .  . 

We  are  unwilling  to  hold  it  to  be  an  element  in  the  liberty  secured 
by  the  Constitution  of  the  United  States  that  one  person,  or  a 
minority  of  persons,  residing  in  any  community  and  enjoying  the 
benefits  of  its  local  government,  should  have  the  power  thus  to 
dominate  the  majority  when  supported  in  their  action  by  the 
authority  of  the  State.  While  this  cour  t  should  guard  with  firm- 
ness every  right  appertaining  to  life,  liberty  or  property  as  secured 
to  the  individual  by  the  supreme  law  of  the  land,  it  is  of  the  last 
importance  that  it  should  not  invade  the  domain  of  local  authority 
except  when  it  is  plainly  necessary  to  do  so  in  order  to  enforce  that 
law.  The  safety  and  the  health  of  the  people  of  Massachusetts 
are,  in  the  first  instance,  for  that  Commonwealth  to  guard  and 
protect.  They  are  matters  that  do  not  ordinarily  concern  the 
National  Government.      So  far  as  they  can  be  reached  by  any 


LOCHNER    V.    NEW    YORK.  701 

government,  they  depend,  primarily,  upon  such  action  as  the  State 
in  its  msdom  may  take;  and  we  do  not  perceive  that  this  legislation 
has  invaded  any  right  secured  by  the  federal  Constitution. 

Before  closing  this  opinion  we  deem  it  appropriate,  in  order  to 
prevent  misapprehension  as  to  our  views,  to  observe  —  perhaps  to 
repeat  a  thought  already  sufficiently  expressed,  namely  —  that  the 
police  power  of  a  State,  whether  exercised  by  the  legislature,  or  by  a 
local  body  acting  under  its  authority,  may  be  exerted  in  such  cir- 
cumstances or  by  regulations  so  arbitrary  and  oppressive  in  partic- 
ular cases  as  to  justify  the  interference  of  the  courts  to  prevent 
wrong  and  oppression.  Extreme  cases  can  be  reacUly  suggested. 
Ondmarily  such  cases  are  not  safe  guides  in  the  administration  of 
the  law.  It  is  easy,  for  instance,  to  suppose  the  case  of  an  adult 
who  is  embraced  by  the  mere  words  of  the  act,  but  yet  to  subject 
whom  to  vaccination  in  a  particular  condition  of  his  health  or  body, 
would  be  cruel  and  inhuman  in  the  last  degree.  We  are  not  to  be 
understood  as  holding  that  the  statute  was  intended  to  be  applied 
to  such  a  case,  or,  if  it  was  so  intended,  that  the  judiciary  would 
not  l^e  competent  to  interfere  and  protect  the  health  and  life  of  the 
individual  concerned.  .  .  . 

We  now  decide  only  that  the  statute  covers  the  present  case,  and 
that  nothing  clearly  ajDpears  that  would  justify  this  court  in  hold- 
ing it  to  be  unconstitutional  and  inoperative  in  its  application  to  the 
plaintiff  in  error. 

The  judgment  of  the  court  i^elow  must  be  affirmed. 

It  is  so  ordered. 

Brewer  and  Peckham,  J  J.,  dissent. 


LOCHXER   V.   NEW  YORK. 

Supreme  Court  or  the  United  States.     1905. 

[198  United  States,  45.]  ^ 

Error  to  the  County  Court  of  Oneida  Count}',  New  York,  in 
which  court  Lochner  was  indicted  and  convicted  because  he  "  re- 
quired and  permitted  an  employe  working  for  him  in  his  biscuit, 
bread,  and  cake  bakery  and  confectionery  establishment,  at  the 
city  of  Utica,  ...  to  work  more  than  sixty  hours  in  one  week," 

^  The  statement  has  not  been  reprinted.  —  Ed. 


702         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

in  disregard  of  the  New  York  labor  law  (Laws,  1897,  c.  418,  art.  8, 
sec.  110).  A  certificate  of  reasonable  doubt  Wiis  granted,  where- 
upon the  judgment  was  affirmed  by  the  Appellate  Division  of  the 
Supreme  Court,  Fourth  Department  (73  N.  Y.  App.  Div.  120)  and 
by  the  Court  of  Appeals  (177  N.  Y.  145).  The  record  having  been 
remitted  to  the  trial  court,  the  present  writ  of  error  followed. 

F.  H.  Field  and  another,  for  plaintiff  in  error;  and  J.  M.  Mayer , 
Attorney  General  of  New  York,  contra. 

Peckha-m,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  statute  necessarily  interferes  with  the  right  of .  contract 
between  the  employer  and  employes,  concerning  the  number  of 
hours  in  which  the  latter  may  labor  in  the  bakery  of  the  employer. 
The  general  right  to  make  a  contract  in  relation  to  his  business  is 
part  of  the  liberty  of  the  individual  protected  by  the  Fourteenth 
Amendment  of  the  federal  Constitution.  Allgeyer  v.  Louisiana, 
165  U.  S.  578.  .  .  . 

If  the  contract  be  one  which  the  State,  in  the  legitimate  exercise 
of  its  police  power,  has  the  right  to  prohibit,  it  is  not  prevented 
from  prohibiting  it  by  the  Fourteenth  Amenchnent.  Contracts  in 
violation  of  a  statute,  either  of  the  federal  or  state  govermnent,  or 
a  contract  to  let  one's  property  for  immoral  purposes,  or  to  do  any 
other  unlawful  act,  could  obtain  no  protection  from  the  federal 
Constitution,  as  coming  under  the  liberty  of  person  or  of  free  con- 
tract. Therefore,  when  the  State,  by  its  legislature,  in  the  as- 
sumed exercise  of  its  police  powers,  has  passed  an  act  which 
seriously  limits  the  right  to  labor  or  the  right  of  contract  in  regard 
to  their  means  of  livelihood  between  persons  who  are  sui  juris  (both 
employer  and  employe),  it  becomes  of  great  importance  to  deter- 
mine which  shall  prevail  —  the  right  of  the  individual  to  labor  for 
such  time  as  he  may  choose,  or  the  right  of  the  State  to  prevent  the 
individual  from  laboring  or  from  entering  into  contract  to  labor, 
bej'ond  a  certain  tune  prescribed  by  the  State. 

Tliis  court  has  recognized  the  existence  and  upheld  the  exercise 
of  the  police  powers  of  the  States  in  many  cases  which  might 
fairly  be  considered  as  border  ones,  and  it  has,  in  the  course  of  its 
determination  of  questions  regarding  the  asserted  invahdity  of 
such  statutes,  on  the  ground  of  their  violation  of  the  rights  secured 
by  the  federal  Constitution,  been  guided  by  rules  of  a  very  liberal 
nature,  the  application  of  which  has  resulted,  in  numerous  in- 
stances, in  upholding  the  validity'  of  state  statutes  thus  assailed. 
Among  the  later  cases  where  the  state  law  has  been  upheld  by  this 
court  is  that  of  Holden  v.  Hardy,  169  U.  S.  366.  .  .  . 


LOCHNER   V.   NEW   YORK.  703 

The  statute  now  before  this  court  has  no  emergency  clause  in  it, 
and,  if  the  statute  is  vahd,  there  are  no  circumstances  and  no 
emergencies  under  which  the  slightest  violation  of  the  provisions  of 
the  act  would  be  innocent.  There  is  nothing  in  Holden  v.  Hardy 
which  covers  the  case  now  before  us.  Nor  does  Atkin  v.  Kansas, 
191  U.  S.  207,  touch  the  case  at  bar.  The  Atkin  case  was  decided 
upon  the  right  of  the  State  to  control  its  municipal  corporations 
and  to  prescribe  the  conditions  upon  which  it  will  permit  work  of  a 
pubhc  character  to  be  done  for  a  municipahty.  Knoxville  Iron  Co. 
V.  Harbison,  183  U.  S.  13,  is  equally  far  from  an  authority  for  this 
legislation.  The  employes  in  that  case  were  held  to  be  at  a  dis- 
advantage with  the  employer  in  matters  of  wages,  they  being 
miners  and  coal  workers,  and  the  act  sunply  provided  for  the  cash- 
ing of  coal  orders  when  presented  by  the  miner  to  the  employer. 

The  latest  case  decided  by  this  court,  involving  the  pohce  power, 
is  that  of  Jacobson  v.  Massachusetts,  decided  at  this  term  and 
reported  in  197  U.  S.  11.  .  .  . 

Petit  V.  Minnesota,  177  U.  S.  164,  was  upheld  as  a  proper  exer- 
cise of  the  police  power  relating  to  the  observance  of  Sunday,  and 
the  case  held  that  the  legislature  had  the  right  to  declare  that,  as 
matter  of  law,  keeping  barber  shops  open  on  Sunday  was  not  a 
work  of  necessity  or  charity. 

It  must,  of  course,  be  conceded  that  there  is  a  lunit  to  the  valid 
exercise  of  the  police  power  by  the  State.  ...  In  every'  case  that 
comes  before  this  court,  therefore,  where  legislation  of  this  char- 
acter is  concerned  and  where  the  protection  of  the  federal  Consti- 
tution is  sought,  the  question  necessarily  arises:  Is  this  a  fair, 
reasonable  and  appropriate  exercise  of  the  police  power  of  the 
State,  or  is  it  an  unreasonable,  uimecessary  and  arbitrary  inter- 
ference with  the  right  of  the  individual  to  his  personal  liberty  or  to 
enter  into  those  contracts  in  relation  to  labor  which  may  seem  to 
him  appropriate  or  necessary  for  the  support  of  hhnself  and  his 
family  ?  Of  course  the  liberty  of  contract  relating  to  labor  in- 
cludes both  parties  to  it.  The  one  has  as  much  right  to  purchase 
as  the  other  to  sell  labor. 

This  is  not  a  question  of  substituting  the  judgment  of  the  court 
for  that  of  the  legislature.  If  the  act  be  within  the  power  of  the 
State  it  is  valid,  although  the  judgment  of  the  court  might  be 
totally  opposed  to  the  enactment  of  such  a  law.  But  the  question 
would  still  remain:  Is  it  within  the  police  power  of  the  State  ?  and 
that  question  must  be  answered  by  the  court. 


704         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

The  question  whether  this  act  is  valid  as  a  labor  law,  pure  and 
simple,  may  be  dismissed  in  a  few  words.  There  is  no  reasonable 
ground  for  interfering  with  the  liberty  of  person  or  the  right  of  free 
contract,  by  determining  the  hours  of  labor,  in  the  occupation  of  a 
baker.  There  is  no  contention  that  bakers  as  a  class  are  not  equal 
in  intelligence  and  capacity  to  men  in  other  trades  or  manual 
occupations,  or  that  they  are  not  able  to  assert  their  rights  and  care 
for  themselves  without  the  protecting  arm  of  the  State,  interfering 
with  their  independence  of  judgment  ami  of  action.  They  are  in 
no  sense  wards  of  the  State.  .  .  .  The  law  must  be  upheld,  if  at 
all,  as  a  law  pertaining  to  the  health  of  the  individual  engaged  in 
the  occupation  of  a  baker.  It  does  not  affect  any  other  portion  of 
the  public  than  those  who  are  engaged  in  that  occupation.  Clean 
and  wholesome  bread  does  not  depend  upon  whether  the  baker 
works  but  ten  hours  per  day  or  only  si.xty  hours  a  week.  The 
limitation  of  the  hoiirs  of  labor  does  not  come  within  the  police 
power  on  that  ground. 

It  is  a  question  of  which  of  two  powers  or  rights  shall  prevail  — 
the  power  of  the  State  to  legislate  or  the  right  of  the  individual  to 
liberty  of  person  and  freedom  of  contract.  The  mere  assertion 
that  the  subject  relates  though  but  in  a  remote  degree  to  the  public 
health  does  not  necessarily  render  the  enactment  valid.  The  act 
must  have  a  more  cUrect  relation,  as  a  means  to  an  end,  and  the  end 
itself  must  be  appropriate  and  legitimate,  before  an  act  can  be  held 
to  be  valid  which  interferes  with  the  general  right  of  an  individual 
to  be  free  in  his  person  and  in  his  power  to  contract  in  relation  to 
his  own  labor. 

This  case  has  caused  much  diversity  of  opinion  in  the  state 
courts.  In  the  Supreme  Court  two  of  the  five  judges  composing 
the  Appellate  Division  dissented  from  the  judgment  affirming  the 
validity  of  the  act.  In  the  Court  of  Appeals  three  of  the  seven 
judges  also  dissented  from  the  judgment  upholding  the  statute. 
Although  found  in  what  is  called  a  labor  law  of  the  State,  the  Court 
of  Appeals  has  upheld  the  act  as  one  relating  to  the  public  health  — 
in  other  words,  as  a  health  law.  One  of  the  judges  of  the  Court  of 
Appeals,  in  upholding  the  law,  stated  that,  in  his  opinion,  the 
regulation  in  question  could  not  be  sustained  unless  they  were  able 
to  say,  from  common  knowledge,  that  working  in  a  bakery  and 
candy  factory  was  an  unhealthy  employment.  The  judge  held 
that,  while  the  evidence  was  not  uniform,  it  still  led  him  to  the 
conclusion 'that  the  occupation  of  a  baker  or  confectioner  was 


LOCHNER   V.    NEW    YORK.  705 

unhealthy  and  tended  to  result  in  diseases  of  the  respiratory 
organs.  Three  of  the  judges  dissented  from  that  view,  and  they 
thought  the  occupation  of  a  baker  was  not  to  such  an  extent  un- 
healthy as  to  warrant  the  interference  of  the  legislature  with  the 
liberty  of  the  individual. 

We  think  the  limit  of  the  police  power  has  been  reached  and 
passed  in  this  case.  There  is,  in  our  judgment,  no  reasonable 
foundation  for  holding  this  to  be  necessary  or  appropriate  as  a 
health  law  to  safeguard  the  pubUc  health  or  the  health  of  the 
individuals  who  are  following  the  trade  of  a  baker.  If  this  statutTe 
be  valid,  and  if,  therefore,  a  proper  case  is  made  out  in  which  to 
deny  the  right  of  an  individual,  mi  juris,  as  employer  or  employe, 
to  make  contracts  for  the  labor  of  the  latter  under  the  protection 
of  the  provisions  of  the  federal  Constitution,  there  would  seem  to 
be  no  length  to  which  legislation  of  this  nature  might  not  go.  .  .  . 

We  think  that  there  can  be  no  fair  doubt  that  the  trade  of  a 
baker,  in  and  of  itself,  is  not  an  unliealthy  one  to  that  degree  which 
would  authorize  the  legislature  to  interfere  with  the  right  to  labor, 
and  with  the  right  of  free  contract  on  the  part  of  the  individual, 
either  as  employer  or  employe.  In  looking  through  statistics 
regarding  all  trades  and  occupations,  it  may  be  true  that  the  trade 
of  a  baker  does  not  appear  to  be  as  healthy  as  some  other  trades, 
and  is  also  vastly  more  healthy  than  still  others.  To  the  common 
understanding  the  trade  of  a  baker  has  never  been  regarded  as  an 
unhealthy  one.  Very  likely  physicians  would  not  recommend  the 
exercise  of  that  or  of  any  other  trade  as  a  remedy  for  ill  health. 
Some  occupations  are  more  healthy  than  others,  but  we  think  there 
are  none  which  might  not  come  under  the  power  of  the  legislature 
to  supervise  and  control  the  hours  of  working  therein,  if  the  mere 
fact  that  the  occupation  is  not  absolutely  and  perfectly  healthy  is 
to  confer  that  right  upon  the  legislative  department  of  the  gov- 
ernment. It  might  be  safely  affirmed  that  almost  all  occupations 
more  or  less  affect  the  health.  ... 

Statutes  of  the  nature  of  that  under  review,  limiting  the  hours  in 
which  grown  and  intelligent  men  may  labor  to  earn  their  living,  are 
mere  meddlesome  interferences  \vith  the  rights  of  the  individual, 
and  they  are  not  saved  from  condemnation  by  the  claun  that  they 
are  passed  in  the  exercise  of  the  police  power  and  upon  the  subject 
of  the  health  of  the  individual  whose  rights  are  interfered  mth, 
unless  there  be  some  fair  ground,  reasonable  in  and  of  itself,  to  say 
that  there  is  material  danger  to  the  public  health  or  to  the  health 


706         THE    FOURTEENTH    AMENDxMENT   AND    POLICE    POWER. 

of  the  employes,  if  the  hours  of  labor  are  not  curtailed.  If  this  be 
not  clearly  the  case  the  individuals,  whose  rights  are  thus  made  the 
subject  of  legislative  interference,  are  under  the  protection  of  the 
federal  Constitution  regarding  their  liberty  of  contract  as  well  as 
of  person;  and  the  legislature  of  the  State  has  no  power  to  limit 
their  right  as  proposed  in  this  statute.  .  .  . 

It  was  further  urged  on  the  argument  that  restricting  the  hours 
of  labor  in  the  case  of  bakers  was  valid  because  it  tended  to  clean- 
liness on  the  part  of  the  workers,  as  a  man  was  more  apt  to  l)e 
cleanly  when  not  overworked,  and  if  cleanly  then  his  "  output  " 
was  also  more  likely  to  be  so.  .  .  .  In  our  judgment  it  is  not  pos- 
sible m  fact  to  discover  the  connection  between  the  number  of 
hours  a  baker  may  work  in  the  bakery  and  the  healthful  quahty  of 
the  bread  made  by  the  workman.  The  connection,  if  any  exists,  is 
too  shadowy  and  thin  to  build  any  argument  for  the  interference 
of  the  legislature.  If  the  man  works  ten  hours  a  day  it  is  all  right, 
but  if  ten  and  a  half  or  eleven  his  health  is  in  danger  and  his  bread 
may  be  unhealthful,  and,  therefore,  he  shall  not  be  permitted  to  do 
it.     This,  we  think,  is  unreasonable  and  entirely  arl)itrary.  .  .  . 

It  is  impossible  for  us  to  shut  our  eyes  to  the  fact  that  many  of  the 
laws  of  this  character,  while  passed  under  what  is  claimed  to  be  the 
police  power  for  the  purpose  of  protecting  the  public  health  or 
welfare,  are,  in  reality,  passed  from  other  motives.  We  are  justified 
in  saying  so  when,  from  the  character  of  the  law  and  the  subject 
upon  which  it  legislates,  it  is  apparent  that  the  public  health  or 
welfare  bears  but  the  most  remote  relation  to  the  law.  The  pur- 
pose of  a  statute  must  be  determined  from  the  natural  and  legal 
effect  of  the  language  employed;  and  whether  it  is  or  is  not  repug- 
nant to  the  Constitution  of  the  United  States  must  be  determined 
from  the  natural  effect  of  such  statutes  when  put  into  operation, 
and  not  from  their  proclaimed  purpose.  ^Minnesota  v.  Barber, 
136  U.  S.  313;  Brimmer  v.  Rebman,  138  U.  S.  78.  The  court  looks 
beyond  the  mere  letter  of  the  law  in  such  cases.  Yick  Wo  v. 
Hopkins,  118  U.  S.  356. 

It  is  manifest  to  us  that  the  limitation  of  the  hours  of  labor  as 
provided  for  m  this  section  of  the  statute  under  which  the  indict- 
ment was  found,  and  the  plaintiff  m  error  convicted,  has  no  such 
direct  relation  to  and  no  such  substantial  effect  upon  the  health  of 
the  employe,  as  to  justify  us  in  regarding  the  section  as  really  a 
health  law.  .  .  . 

The  judgment  of  the  Court  of  Appeals  of  New  York  as  well  as 
that  of  the  Supreme  Court  and  of  the  County  Court  of  Oneida 


NOBLE    STATE    BANK    V.    HASKELL.  707 

County  must  be  reversed  and  the  case  remanded  to  the  County 
Court  for  further  proceedings  not  inconsistent  with  this  opinion. 

Reversed. 

Harlan,   J.,   with  whom  White    and   Day,   JJ.,   concurred, 
dissenting.  .  .  . 

Holmes,  J.,  dissenting.  .  .  . 


NOBLE  STATE  BANK   v.   HASKELL. 

Supreme  Court  of  the  United  States.     1911. 

[219  UnUed  States,  104.]  i 

Error  to  the  Supreme  Court  of  Oklahoma. 

C.  B.  Ames  and  others,  for  plaintiff  in  error;  and  C.  West, 
Attorney  General  of  Oklahoma,  and  others,  contra. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  proceeding  against  the  Governor  of  the  State  of  Okla- 
homa and  other  officials  who  constitute  the  State  Banking  Board, 
to  prevent  them  from  levying  and  collecting  an  assessment  from 
the  plaintiff  under  an  act  approved  December  17,  1907.  This  act 
creates  the  Board  and  directs  it  to  levy  upon  every  bank  existing 
under  the  laws  of  the  State  an  assessment  of  one  per  cent  of  the 
bank's  average  daily  deposits,  with  certain  deductions,  for  the  pur- 
pose of  creating  a  Depositors'  Guaranty  Fund.  There  are  provisos 
for  keeping  up  the  fund,  and  by  an  act  passed  March  11,  1909, 
since  the  suit  was  begun,  the  assessment  is  to  be  five  per  cent.  The 
purpose  of  the  fund  is  shown  by  its  name.  It  is  to  secure  the  full 
repayment  of  deposits.  When  a  bank  becomes  insolvent  and  goes 
into  the  hands  of  the  Bank  Commissioner,  if  its  cash  immediately 
available  is  not  enough  to  pay  depositors  m  full,  the  Banking  Board 
is  to  draw  from  the  Depositors'  Guaranty  Fund  (and  from  addi- 
tional assessments  if  required)  the  amount  needed  to  make  up  the 
deficiency.  A  lien  is  reserved  upon  the  assets  of  the  failing  bank 
to  make  good  the  sum  thus  taken  from  the  fund.  The  plaintiff 
says  that  it  is  solvent  and  does  not  want  the  help  of  the  Guaranty 
Fund,  and  that  it  cannot  be  called  upon  to  contribute  toward 

1  The  reporter's  short  statement  has  been  omitted.  —  Ed. 


708         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

securing  or  paying  the  depositors  in  other  banks  consistently  with 
Article  I,  §  10,  and  the  Fourteenth  Amenchnent  of  the  Constitution 
of  the  United  States.  The  petition  was  dismissed  on  demurrer  by 
the  Supreme  Court  of  the  State.     22  Oklahoma,  48. 

The  reference  to  Article  I,  §  10,  does  not  strengthen  the  plain- 
tiff's bill.  The  only  contract  that  it  relies  upon  is  its  charter. 
That  is  subject  to  alteration  or  repeal,  as  usual,  so  that  the  obliga- 
tion hardly  could  be  said  to  be  impaired  by  the  act  of  1907  before 
us,  unless  that  statute  dei)rives  the  plaintiff  of  liberty^  yr  prop^^ffv 
without  clue  process  of  law!  See  Sherman  v.  Smitli,  1  JMack,  587. 
Whether  it  does  so  or  not  is  the  only  question  in  tlie  case. 

Immswcrmg  that  question  we  must  be  cautious  about  pressing 
the  broad  words  of  the  Fourteenth  Amendment  to  a  drily  logical 
extreme.  Many  laws  which  it  would  be  vain  to  ask  the  court  to 
overthrow  could  be  shown,  easily  enough,  to  trangress  a  scholastic 
interpretation  of  one  or  another  of  the  great  guarantees  in  the  Bill 
of  Rights.  They  more  or  less  limit  the  liberty  of  the  individual  or 
they  diminish  property  to  a  certain  extent.  We  have  few  scienti- 
fically certain  criteria  of  legislation,  and  as  it  often  is  difficult  to 
mark  the  line  where  what  is  called  the  police  power  of"  the  States  is 
limited  by  the  Constitution  of  the  United  States,  judges  should  be 
slow  to  read  into  the  latter  a  tiolumus  mutare  as  against  the  law- 
making power. 

The  substance  of  the  plaintiff's  argument  is  that  the  assessment 
takes  private  property  for  private  use  witliout  compensation.  And 
while  we  should  assume  that  the  plaintiff  would  retain  a  rever- 
sionary interest  in  its  contribution  to  the  fund  so  as  to  be  entitled 
to  a  return  of  what  remained  of  it  if  the  purpose  were  given  up  (see 
Receiver  of  Danby  Bank  v.  State  Treasurer,  39  Vermont,  92,  98), 
still  there  is  no  denying  that  by  this  law  a  portion  of  its  property 
might  be  taken  without  return  to  pay  debts  of  a  failing  rival  in 
business.  Nevertheless,  notwithstanding  the  logical  form  of  the 
objection,  there  are  more  powerful  considerations  on  the  other  side. 
In  the  first  place  it  is  established  by  a  series  of  cases  that  an  ulterior 
public  advantage  may  justify  a  comparatively  insignificant  taking 
of  private  property  for  what,  in  its  immecUate  purpose,  is  a  private 
use.  Clark  v.  Nash,  198  U.  S.  361.  Strickley  v.  Highland  Boy 
Mining  Co.,  200  U.  S.  527,  531.  Offield  v.  New  York,  New  Haven 
&  Hartford  R.  R.  Co.,  203  U.  S.  372.  Bacon  v.  Walker,  204  U.  S. 
311,  315.  And  in  the  next,  it  would  seem  that  there  may  be  other 
cases  beside  the  every  day  one  of  taxation,  in  which  the  share  of 
each  party  in  the  benefit  of  a  scheme  of  mutual  protection  is  suffi- 


NOBLE    STATE    BANK   V.    HASKELL.  709 

c'ient  compensation  for  the  correlative  burden  that  it  is  compelled 
to  assume.  See  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  190.  At  least, 
if  we  have  a  case  within  the  reasonable  exercise  of  the  police  power 
as  above  explained,  no  more  need  be  said. 

It  may  be  said  in  a  general  way  that  the  police  power  extends  to 
all  the  great  public  needs.     Camfield  v.  United  States,  167  U.  S. 
518.     It  may  be  put  forth  in  aid  of  what  is  sanctioned  by  usage,  or 
held  by  the  prevailing  morality  or  strong  and  preponderant  opinion 
to  be  greatly  and  immediately  necessary  to  the  public  welfare. 
Among  matters  of  that  sort  probably  few  would  doubt  that  both 
usage  and  preponderant  opinion  give  their  sanction  to  enforcing 
the  primary  conditions  of  successful  commerce.     One  of  those  con- 
ditions at  the  present  time  is  the  possibility  of  payment  by  checks 
drawn  against  bank  deposits,  to  such  an  extent  do  checks  replace 
currency  in  daily  business.      If  then  the  legislature  of  the  State 
thinks  that  the  public  welfare  requires  the  measure  under  con- 
sideration, analogy  and  principle  are  in  favor  of  the  power  to  enact 
it.     Even  the  primary  object  of  the  required  assessment  is  not  a 
private  benefit  as  it  was  in  the  cases  above  cited  of  a  ditch  for 
irrigation  or  a  railway  to  a  mine,  but  it  is  to  make  the  currency  of 
checks  secure,  and  by  the  same  stroke  to  make  safe  the  almost 
compulsory  resort  of  depositors  to  banks  as  the  only  available 
means  for  keeping  money  on  hand.     The  priority  of  claim  given  to 
depositors  is  incidental  to  the  same  object  and  is  justified  in  the 
same  way.     The  power  to  restrict  liberty  by  fixing  a  miinrmiTn  of 
pnpHnl  ypqinrf.^1  ^f  |hns^  yvhn  would  enpjMtre  in  ])anking  is  not  denied 
llie  i)o\ver  to  restrict  investments  to  securities  rcpjMrded  as  rela-_ 
th'ely  safe  seems  eri^]n]]v  i^l.-^in    It  ha^Jjeen  held,  we  do  not  doubt 
Hfi^itly,  tlujt  inspections  may  be  requirecl  and  the  cost  tTirown  on 
the  bank.  ^   See  Charlotte,  Columbia  &  Augusta  R.  R.  Co.  v.  Gibbes 
142U.  S.  386.     The  power  to  compel,  beforehand,  cooperation,  and 
thus,  it  is  believed,  to  make  a  failure  unlikely  and  a  general  panic 
almost  impossible,  must  be  recognized,  if  government  is  to  do  its 
proper  work,  unless  we  can  say  that  the  means  have  no  reasonable 
relation  to  the  end.     Gundling  v.  Chicago,  177  U.  S.  183,  188.     So 
far  is  that  from  being  the  case  that  the  device  is  a  familiar  one.    It 
was  adopted  by  some  States  the  better  part  of  a  century  ago,  and 
seems  never  to  have  been  questioned  until  now.      Receiver  of 
Danby  Bank  v.  State  Treasurer,   39  Vermont,   92.      People  v. 
Walker,  17  N.  Y.  502.     Recent  cases  going  not  less  far  are  Lemieux 
V.  Young,  211  U.  S.  489,  496.      Kidd,  Dater  and  Price  Co.  v. 
Musselman  Grocer  Co.,  217  U.  S.  461. 


710         THE    FOURTEENTH    AMENDMENT    AND    POLICE    POWER. 

It  is  asked  whether  the  State  could  require  all  corporations  or  all 
grocers  to  help  to  guarantee  each  other's  solvency,  and  where  we 
are  going  to  draw  the  line.  But  the  last  is  a  futile  question,  and 
we  will  answer  the  others  when  they  arise.  With  regard  to  the 
police  power,  as  elsewhere  in  the  law,  lines  are  pricked  out  by  the 
gradual  approach  and  contact  of  decisions  on  the  opposing  sides. 
Hudson  County  Water  Co.  v.  McCarter,  209  U.  S.  349,  355.  It 
will  serve  as  a  datum  on  this  side,  that  iji  our  opinion  the  statute 
before  us  is  well  witliin  the  State's  constitutional  power,  wliile  the 
qSe  ol  the  putjiic  cfgfUt  on  a  large  scale  to  help  fiulividn.'^ls  iiia*wsi- 
riess  has  been  held  to  be  beyond  the  line.  Loan  Association  v. 
Topelva,  20' Wall.  0^1^.     Lowell  v.  liosiuii,  lt4 Massachusetts,  454. 

The  question  tliat  we  have  decided  is  not  much  helped  by  pro- 
pounding the  further  one,  whether  the  right  to  engage  in  banking 
is  or  can  be  made  a  franchise.  But  as  the  latter  question  has  some 
bearing  on  the  former  and  as  it  will  have  to  be  considered  in  the 
following  cases,  if  not  here,  we  will  dispose  of  it  now.  It  is  not 
answered  by  citing  authorities  for  the  existence  of  the  right  at 
common  law.  There  are  many  things  that  a  man  might  do  at  com- 
mon law  that  the  States  may  forbid.  He  might  embezzle  until  a 
statute  cut  down  his  liberty.  We  camiot  say  that  the  public 
interests  to  which  we  have  adverted,  and  others,  are  not  sufficient 
to  warrant  the  State  in  taking  the  whole  business  of  banking  under 
its  control.  On  the  contrary  we  are  of  opinion  that  it  may  go  on 
from  regulation  to  prohibition  except  upon  such  conditions  as  it 
may  prescribe.  In  short,  when  the  Oklahoma  legislature  declares 
by  implication  that  free  banking  is  a  public  danger,  and  that  in- 
corporation, inspection  and  the  qjjove-described  cooperation  are 
necessary  safeguards,  this  court  certainly  cannot  say  that  it  is 
wrong.  North  Dakota  v.  Woodmansee,  1  N.  Dak.  246.  Brady  v. 
Mattern,  125  Iowa,  158.  Weed  v.  Bergh,  141  Wisconsin,  5G9. 
Commonwealth  v.  Vrooman,  164  Pa.  306.  Myers  v.  Irwin,  2  S.  & 
R.  368.  Myers  v.  Manhattan  Bank,  20  Ohio,  283,  302.  Attorney 
General  v.  Utica  Insurance  Co.,  2  Johns.  Ch.  371,  377.  Some 
further  details  might  be  mentioned,  but  we  deem  them  unneces- 
sary. Of  course  objections  under  the  state  constitution  are  not 
open  here.  Judgment  affirmed} 

1  A  motion  for  a  rehearing  was  denied  (219  U.  S.  575),  the  court,  per  Holmes, 
J.,  saying: 

"  Leave  to  file  an  application  for  rehearing  is  asked  in  this  case.  We  see  no 
reason  to  grant  it,  but,  as  the  judgment  delivered,  ante,  p.  104,  seems  to  have 
conveyed  a  wrong  impression  of  the  opinion  of  the  court  in  some  details,  we  add 


CHICAGO   V.    STURGES.  711 

CHICAGO  V.   STURGES. 
Supreme  Court  of  the  United  States.     1911. 

[222  United  States,  313.]  i 

Error  to  the  Supreme  Court  of  Illinois. 

J.  W.  Beckwith  and  others,  for  plaintiff  in  error;  and  A.  W, 
Bulkley  and  others,  contra. 

LuRTON,  J.,  delivered  the  opinion  of  the  court. 

The  only  question  under  this  writ  of  error  is  as  to  the  validity  of 
a  statute  of  the  State  of  Illinois  entitled  "  An  Act  to  indemnify  the 
owners  of  property  for  damages  occasioned  by  mobs  and  riots." 
Laws  of  1887,  p.  237. 

The  defendant  in  error  recovered  a  judgment  against  the  city 
under  that  statute,  which  was  affirmed  in  the  Supreme  Court  of  the 
State.  237  Illinois,  4G.  The  validity  of  tlie  law  under  the  Illinois 
constitution  was  thus  affirmed,  and  that  question  is  thereby  fore- 
closed. But  it  was  urged  in  the  Illinois  courts  that  the  act  violated 
the  guarantee  of  due  process  of  law  and  the  equal  protection  of  the 
law  as  provided  by  the  Fourteenth  Amendment  of  the  Constitution 
of  the  United  States. 

By  the  provisions  of  the  statute  referred  to,  a  city  is  made  liable 
for  three-fourths  of  the  damage  resulting  to  property  situated 
therein,  caused  by  the  violence  of  any  mob  or  riotous  assemblage 
of  more  than  twelve  persons,  not  abetted  or  permitted  by  the 
negligent  or  wrongful  act  of  the  owner,  etc.     If  the  damage  be  to 

a  few  words  to  what  was  said  when  the  case  was  decided.  We  fully  under- 
stand the  practical  importance  of  the  question  and  the  very  powerful  argu- 
ment that  can  be  made  against  the  wisdom  of  the  legislation,  but  on  that  point 
we  have  nothing  to  say,  as  it  is  not  our  concern.  Clark  v.  Nash,  198  U.  S.  361, 
Strickley  i'.  Highland  Boy  Mining  Co.,  200  U.  S.  527,  etc.,  were  cited  to  estab- 
lish, not  that  property  might  be  taken  for  a  private  use,  but  that  among  the 
public  uses  for  which  it  might  be  taken  were  some  which,  if  looked  at  only  in 
their  immediate  aspect,  according  to  the  proximate  effect  of  the  taking,  might 
seem  to  be  private.  This  case,  in  our  opinion,  is  of  that  sort.  The  analysis 
of  the  police  power,  whether  correct  or  not,  was  intended  to  indicate  an  inter- 
pretation of  what  has  taken  place  in  the  past  not  to  give  a  new  or  wider  scope 
to  the  power.  The  propositions  with  regard  to  it,  however,  in  any  form,  are 
rather  in  the  nature  of  preliminaries.  For  in  this  case  there  is  no  out  and  out 
unconditional  taking  at  all.  The  payment  can  be  avoided  by  going  out  of  the 
banking  business,  and  is  required  only  as  a  condition  for  keeping  on,  from  cor- 
porations created  by  the  State.  We  have  given  what  we  deem  sufficient 
reasons  for  holding  that  such  a  condition  may  be  imposed."  —  Ed. 
^  The  reporter's  short  statement  has  been  omitted.  —  Ed. 


712         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

property  not  within  the  city,  then  the  county  in  which  it  is  located 
is  in  like  manner  made  responsible.  The  act  saves  to  the  owner  his 
action  against  the  rioters  and  gives  the  city  or  count}',  as  the  case 
may  be,  a  lien  upon  any  judgment  against  such  participants  for 
reimbursement,  or  a  remedy  to  the  city  or  county  directly  against 
the  individuals  causing  the  damage,  to  the  amount  of  any  judgment 
it  may  have  paid  the  sufferer. 

It  is  said  that  the  act  denies  to  the  city  due  process  of  law,  since 
it  imposes  liabihty  irrespective  of  any  question  of  the  power  of  the 
city  to  have  prevented  the  violence,  or  of  negUgence  in  the  use  of 
its  power.  This  was  the  interpretation  placed  upon  the  act  by  the 
Supreme  Court  of  Illinois.  Does  the  law  as  thus  interpreted  deny 
due  process  of  law  ?  That  the  law  provides  for  a  judicial  hearing 
and  a  remedy  over  against  those  primarily  liable  narrows  the  ob- 
jection to  the  single  question  of  legislative  power  to  impose  liability 
regardless  of  fault. 

It  is  a  general  principle  of  our  law  that  there  is  no  individual 
liability  for  an  act  which  ordinary  human  care  and  foresight  could 
not  guard  against.  It  is  also  a  general  principle  of  the  same  law 
that  a  loss  from  any  cause  purely  accidental  must  rest  where  it 
chances  to  fall.  But  behind  and  above  these  general  principles 
which  the  law  recognizes  as  ordinarily  prevailing,  there  lies  the 
legislative  power,  which,  in  the  absence  of  organic  restraint,  may, 
for  the  general  welfare  of  society,  impose  obligations  and  responsi- 
bilities otherwise  non-existent. 

Primarily,  goverrmients  exist  for  the  maintenance  of  social 
order.  Hence  it  is  that  the  obligation  of  the  government  to  pro- 
tect life,  liberty  and  property  against  the  conduct  of  the  indifferent, 
the  careless  and  the  evil-minded  may  be  regarded  as  lying  at  the 
very  foundation  of  the  social  compact.  A  recognition  of  this  su- 
preme obligation  is  found  in  those  exertions  of  the  legislative  power 
which  have  as  an  end  the  preservation  of  social  order  and  the  pro- 
tection of  the  welfare  of  the  public  and  of  the  individual.  If  such 
legislation  be  reasonabl}'  adapted  to  the  end  in  view,  affords  a 
hearing  before  judgment,  and,  is  not  forbidden  by  some  other 
affirmative  provision  of  constitutional  law,  it  is  not  to  be  regarded 
as  denjdng  due  process  of  law  under  the  provisions  of  the  Four- 
teenth Amendment. 

The  law  in  question  is  a  valid  exercise  of  the  police  power  of  the 
State  of  Illinois.  It  rests  upon  the  duty  of  the  State  to  protect  its 
citizens  in  the  enjoyment  and  possession  of  their  acquisitions,  and 
is  but  a  recognition  of  the  obligation  of  the  State  to  preserve  social 


CHICAGO    V.    STURGES.  713 

order  and  the  property  of  the  citizen  against  the  violence  of  a  riot 
or  a  mob. 

The  State  is  the  creator  of  subordinate  municipal  governments. 
It  vests  in  them  the  police  powers  essential  to  the  preservation  of 
law  and  order.  It  imposes  upon  them  the  duty  of  protecting  prop- 
erty situated  within  their  limits  from  the  violence  of  such  public 
breaches  of  the- peace  as  are  mobs  and  riots.  This  duty  and  obliga- 
tion thus  entrusted  to  the  local  subordinate  government  is  by  this 
enactment  emphasized  and  enforced  by  unposing  upon  the  local 
community  absolute  liability  for  property  losses  resulting  from  the 
violence  of  such  public  tumults. 

The  policy  of  imposing  liability  upon  a  civil  subdivision  of 
government  exercising  delegated  police  power  is  familiar  to  every 
student  of  the  common  law.  We  find  it  recognized  in  the  begin- 
ning of  the  po^'ce  system  of  Anglo-Saxon  people.  Thus,  "  The 
Hundred,"  a  very  '^arly  form  of  civil  subdivision,  was  held  answer- 
able for  robberies  conmiitted  within  the  division.  By  a  series  of 
statutes,  beginning  possibly  in  1285,  in  the  statutes  of  Winchester, 
13  Edw.  I,  c.  1,  coming  down  to  the  27th  Elizabeth,  c.  13,  the  Riot 
Act  of  George  I  (1  Geo.  I,  St.  2)  and  Act  of  8  George  II,  c.  16,  we 
may  find  a  continuous  recognition  of  the  principle  that  a  civil 
subdivision  entrusted  with  the  duty  of  protecting  property  in  its 
midst  and  with  police  power  to  discharge  the  function,  may  be 
made  answerable  not  only  for  negligence  affirmatively  shown,  but 
absolutely  as  not  having  afforded  a  protection  adequate  to  the 
obligation.  Statutes  of  a  similar  character  have  been  enacted  by 
several  of  the  States  and  held  valid  exertions  of  the  police  power. 
Darlington  v.  Mayor  &c.  of  New  York,  31  N.  Y.  164;  Fauvia  v. 
New  Orleans,  20  La.  Ann.  410;  County  of  Allegheny  v.  Gibson  &c., 
90  Pa.  St.  397.  The  imposition  of  absolute  liability  upon  the 
community  when  property  is  destroyed  through  the  violence  of  a 
mob  is  not,  therefore,  an  unusual  police  regulation.  Neither  is 
it  arbitrary,  as  not  resting  upon  reasonable  grounds  of  policy. 
Such  a  regulation  has  a  tendency  to  deter  the  lawless,  since  the 
sufferer  must  be  compensated  by  a  tax  burden  which  will  fall  upon 
all  property,  mcluding  that  of  the  evil  doers  as  members  of  the 
community.  It  is  likewise  calculated  to  stimulate  the  exertions  of 
the  indifferent  and  the  law-abiding  to  avoid  the  falling  of  a  bur- 
den which  they  must  share  with  the  lawless.  In  that  it  directly 
operates  on  and  affects  public  opinion,  it  tends  strongly  to  the  up- 
holding of  the  empire  of  the  law. 


714         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

There  remains  the  contention  that  the  act  discriminates  between 
cities  and  villages  or  other  incorporated  towns. 

The  habiiity  is  imposed  upon  the  city  if  tlie  property  be  within 
the  limits  of  a  city;  if  not,  then  upon  the  county.  The  classifica- 
tion is  not  an  unreasonable  one.  A  city  is  presumptively  the 
more  populous  and  better  organized  community.  As  sucli  it  may 
well  be  singled  out  and  made  exclusively  responsible  for  tlie  con- 
sequence of  riots  and  mobs  to  property  therein. 

The  county,  which  includes  the  city  and  other  incorporated 
subdivisions,  is,  not  unreasonably,  made  liable  to  all  sufferers 
whose  property  is  not  within  the  limits  of  a  city. 

The  power  of  the  State  to  impose  liability  for  damage  antl  injury 
to  property  from  riots  and  mobs  includes  the  power  to  make  a 
classification  of  the  subordinate  municipalities  upon  which  the 
responsibility  may  be  imposed.  It  is  a  matter  for  the  exercise  of 
legislative  discretion,  and  the  equal  protection  of  the  law  is  not 
denied  where  the  classification  is  not  so  unreasonable  and  extrava- 
gant as  to  be  a  mere  arbitrary  mandate. 

The  cases  ui)on  this  suljject  are  so  numerous  as  to  need  no  further 
elucidation. 

Among  the  later  cases  are  Williams  v.  Arkansas,  217  U.  S.  79; 
Watson  V.  Maryland,  218  U.  S.  173;  Chicago  B.  &  Q.  R.  R.  Co.  v. 
McGuire,  219  U.  S.  549;  House  v.  Mayes,  219  U.  S.  270. 

Judgment  affirmed. 


MURPHY  V.   CALIFORNIA. 
Supreme  Court  of  the  United  States,     1912. 

[225  United  States,  623.] » 

Error  to  the  Superior  Court  of  Los  Angeles  County,  California. 

A.  S.  Austrian  and  another,  for  plaintiff  in  error;  and  J.  E. 
Carson  and  another,  contra. 

Lamar,  J.,  delivered  the  opinion  of  the  court. 

In  1908  the  city  of  South  Pasadena,  California,  in  pursuance  of 
police  power  conferred  by  general  law,  passed  an  ordinance  which 
prohibited  any  person  from  keeping  or  maintaining  any  hall  or 
room  in  which  billiard  or  pool  tables  were  kept  for  hire  or  public 

1  The  reporter's  short  statement  has  been  omitted.  —  Ed. 


MURPHY   V.    CALIFORNIA.  715 

use,  pro\'ided  it  should  not  be  coastrued  to  prevent  the  proprietor 
of  a  hotel  using  a  general  register  for  guests,  and  ha\ang  twenty- 
five  bedrooms  and  upwards,  from  maintaining  billiard  tables  for 
the  use  of  regular  guests  only  of  such  hotel,  in  a  room  provided  for 
that  purpose. 

The  plaintiff  in  error  was  arrested  on  the  charge  of  violating  this 
ordinance.  His  application  for  a  ^vTit  of  habeas  corpus  was  denied 
by  the  Court  of  Appeals  and  Supreme  Court  of  the  State.  In  re 
Murphy,  8  Cal.  App.  440;  155  California,  322.  Thereafter  the 
case  came  on  for  trial  in  the  Recorder's  Court,  where  the  defendant 
testified  that,  at  a  time  when  there  was  no  ordinance  on  the  subject, 
he  had  leased  a  room  in  the  business  part  of  the  city,  and  at  large 
expense  fitted  it  up  \vith  the  necessary  tables  and  equipments; 
that  the  place  was  conducted  in  a  peaceable  and  orderly  manner; 
that  no  betting  or  gambling  or  unlawful  acts  of  any  kind  were  per- 
mitted, and  "  that  there  was  nothing  in  the  conduct  of  the  business 
which  had  any  tendency  to  immorality  or  could  in  the  least  affect 
the  health,  comfort,  safety  or  morality  of  the  community  or  those 
who  frequented  said  place  of  business."  This  evidence  was  on 
motion  excluded  and  testimony  of  other  witnesses  to  the  same 
effect  was  rejected. 

The  defendant  was  found  guilty  and  sentenced  to  pay  a  fine,  or 
in  default  thereof  to  be  imprisoned  in  the  county  jail.  The  con- 
viction was  affirmed  by  the  Superior  Court  of  the  County,  the 
highest  court  to  which  he  could  appeal.  The  case  was  then  brought 
here  by  wTit  of  error,  the  plaintiff  contending  that  the  ordinance 
violated  the  provisions  of  the  Fourteenth  Amendment,  claiming,  in 
the  first  place,  that  in  preventing  him  from  maintaining  a  billiard 
hall  it  deprived  him  of  the  right  to  follow  an  occupation  that  is  not  a 
nuisance  per  se,  and  which  therefore  could  not  be  absoluteh'  pro- 
hibited. 

The  Fourteenth  Amendment  protects  the  citizen  in  his  right  to 
engage  in  any  lawful  business,  but  it  does  not  prevent  legislation 
intended  to  regulate  useful  occupations  which,  because  of  their 
nature  or  location,  may  prove  injurious  or  offensive  to  the  public. 
Neither  does  it  prevent  a  municipality  from  prohibiting  any  busi- 
ness which  is  inherently  vicious  and  harmful.  But,  between  the 
useful  business  which  may  V)e  regulated  and  the  vicious  business 
which  can  be  prohibited  lie  many  non-useful  occupations,  which 
may,  or  may  not  be  harmful  to  the  public,  according  to  local  con- 
ditions, or  the  manner  in  which  they  are  conducted. 


716         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

Playing  at  billiards  is  a  lawful  amusement;  and  keeping  a 
billiard  hall  is  not,  as  held  bj'  the  Supreme  Court  of  California  on 
plaintiff's  application  for  habeas  corpus,  a  nuisance  per  se.  But  it 
may  become  such;  and  the  regulation  or  prohibition  need  not  be 
postponed  until  the  evil  has  become  flagrant. 

That  the  keeping  of  a  l)illiard  hall  hits  a  harmful  tendency  is  a 
fact  requiring  no  proof,  and  incapable  of  being  controverted  by  the 
testimony  of  the  plaintiff  that  his  business  was  lawfully  conducted, 
free  from  gaming  or  anything  which  could  affect  the  morality  of 
the  community  or  of  his  patrons.  The  fact  that  there  had  been  no 
disorder  or  open  violation  of  the  law  does  not  prevent  the  municipal 
authorities  from  taking  legislative  notice  of  the  idleness  and  other 
evils  which  result  from  the  maintenance  of  a  resort  where  it  is  the 
business  of  one  to  stimulate  others  to  play  beyond  what  is  proper 
for  legitimate  recreation.  The  ordinance  is  not  aimed  at  the  game 
but  at  the  place;  and  where,  in  the  exercise  of  the  police  power, 
the  municipal  authorities  determine  that  the  keeping  of  such  resorts 
should  be  prohibited,  the  courts  cannot  go  behind  their  finding  and 
inquire  into  local  conditions;  or  whether  the  defendant's  hall  was 
an  orderly  establishment,  or  had  been  conducted  in  sucii  manner 
as  to  produce  the  evils  sought  to  be  prevented  by  the  ordinance. 
As  said  in  Booth  v.  Illinois,  184  U.  S.  425,  429: 

"  A  calling  may  not  in  itself  be  immoral,  and  yet  the  tendency  of 
what  is  generally  or  ordinarily  or  often  done  in  pursuing  that  calling 
may  be  towards  that  which  is  achnittedly  immoral  or  pernicious. 
If,  looking  at  all  the  circumstances  that  attend,  or  which  may 
ordinarily  attend,  the  pursuit  of  a  particular  calling,  the  State 
thinks  that  certain  admitted  evils  camiot  be  successfully  reached 
unless  that  calling  be  actually  prohibited,  the  courts  cannot  inter- 
fere, unless,  looking  through  mere  forms  and  at  the  substance  of 
the  matter,  they  can  say  that  the  statute  enacted  professedly  to 
protect  the  public  morals  has  no  real  or  substantial  relation  to  that 
object,  but  is  a  clear,  unmistakable  infringment  of  rights  secured  by 
the  fundamental  law." 

Under  this  principle  ordinances  prohibiting  the  keeping  of 
billiard  halls  have  many  times  been  sustained  by  the  courts.  Tan- 
ner V.  Albion,  5  Hill.  121;  City  of  Tarkio  v.  Cook,  120  Missouri,  1; 
City  of  Clearwater  v.  Bowman,  72  Kansas,  92;  City  of  Corinth  v. 
Crittenden,  94  Mississippi,  41;  Cole  v.  Village  of  Culbertson,  86 
Nebraska,  160;  Ex  parte  Jones,  109  Pac.  Rep.  570;  s.c.  4  Okla. 
Or.  74. 


MURPHY    V.    CALIFORNIA.  717 

Indeed,  such  regulations  furnish  early  instances  of  the  exercise 
of  the  police  power  by  cities.  For  Lord  Hale  in  1G72  (2  Keble, 
846),  upheld  a  municipal  by-law  against  keepmg  bowling  alleys 
because  of  the  known  and  demoraUzing  tendency  of  such  places. 

Under  the  laws  of  the  State,  South  Pasadena  was  authorized  to 
pass  this  ordinance.  After  its  adoption,  the  keeping  of  billiard  or 
pool  tables  for  hire  was  unlawful,  and  the  plaintiff  in  error  cannot  be 
heard  to  complaui  of  the  money  loss  resulting  from  having  invested 
his  property  in  an  occupation  which  was  neither  protected  by  the 
state  nor  the  federal  Constitution,  and  which  he  was  bound  to 
know  could  lawfully  be  regulated  out  of  existence. 

There  is  no  merit  in  the  contention  that  he  was  denied  the  equal 
protection  of  the  law  because,  while  he  was  prevented  from  so 
doing,  the  owners  of  a  certain  class  of  hotels  were  permitted  to 
keep  a  room  in  which  guests  might  play  at  the  game.  If,  as  argued, 
there  is  no  reasonable  basis  for  making  a  distinction  between  hotels 
with  25  rooms  and  those  wth  24  rooms  or  less,  the  plaintiff  in  error 
is  not  in  position  to  complain,  because  not  being  the  owner  of  one 
of  the  smaller  sort,  he  does  not  suffer  from  the  alleged  discrimina- 
tion. 

There  is  no  contention  that  these  provisions,  permitting  hotels 
to  maintain  a  room  in  which  their  regular  and  registered  guests 
might  play  were  evasively  inserted,  as  a  means  of  permitting  the 
proprietors  to  keep  tables  for  hire.  Neither  is  it  claimed  that  the 
ordinance  is  being  unequally  enforced.  On  the  contrary,  the  city 
trustees  are  bound  to  revoke  the  permit  granted  to  hotels  in  case  it 
should  be  made  to  appear  that  the  proprietor  suffered  his  rooms  to 
be  used  for  playing  billiards  by  other  than  regular  guests.  If  he 
allowed  the  tables  to  be  used  for  hire  he  would  be  guilty  of  a  viola- 
tion of  the  ordinance  and,  of  course,  be  subject  to  prosecution  and 
punishment  ui  the  same  way,  and  to  the  same  extent,  as  the 

defendant. 

Affirmed. 


718         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

EUBANK   V.   CITY   OF  RICHMOND. 

Supreme  Court  of  the  United  States.     1912. 

[226  United  SlaUs,  137.] ' 

Error  to  the  Supreme  Court  of  Appeals  of  Virginia. 

A  statute  of  Virginia  (Acts,  1908,  p.  623,  4)  authorized  city 
councils  "  in  their  discretion,  ...  in  particular  districts,  to  pre- 
cribe  .  .  .  building  lines."  The  city  council  of  Richmond  passed 
an  ordinance  "  That  whenever  the  owners  of  two-thirds  of  the 
property  abutting  on  any  street  shall  .  .  .  request  the  committee 
on  streets  to  establish  a  building  line  on  the  side  of  the  square  on 
which  their  property  fronts,  the  said  committee  shall  establish 
such  line  .  .  .  not  .  .  .  less  than  five  feet  nor  more  than  thirty 
from  the  street  line.  .  .  .  And  no  permit  for  the  erection  of  any 
building  upon  such  front  of  the  square  .  .  .  shall  be  issued  except 
for  the  construction  of  houses  within  the  limits  of  the  line."  A 
fine  of  not  less  than  S25  nor  more  than  S500  was  prescril>ed.  On 
December  19,  1908,  Eubank,  owner  of  a  lot  33  ft.  wide  applied  for 
and  received  a  permit  to  build  a  detached  brick  dwelling,  of  the 
dimensions  of  20  x  59  x  28  feet,  according  to  plans  and  specifications 
which  had  been  approved  by  the  building  inspector.  On  January 
9,  1909,  the  street  committee,  on  petition  of  two-thirds  of  the  prop- 
erty owners  on  that  side  of  the  square,  established  a  building  line 
"  on  the  line  of  a  majority  of  the  houses  then  erected,"  and  ordered 
the  building  inspector  to  be  notified.  The  material  for  building 
had  been  assembled,  but  no  work  of  construction  had  l)een  done. 
The  building  inspector  gave  notice  that  the  line  established  was 
"  about  14  ft.  from  the  true  line  of  the  street  and  on  a  line  with  the 
majority  of  the  houses  "  and  that  all  portions  of  the  house,  mclud- 
ing  the  octagon  bay  window,  must  be  set  back  to  conform  to  that 
line.  The  Board  of  Public  Safety,  being  appealed  to  sustained  the 
inspector.  Eubank  so  erected  the  building  that  the  octagon  bay 
window  projected  about  three  feet  over  the  line.  The  Police  Court 
imposed  a  fine  of  $25.  The  judgment  was  affirmed  in  the  Hust- 
ing's  Court  of  Richmond  and  in  the  Supreme  Coiu-t  of  Appeals 
(llOVa.749). 

S.  S.  P.  Patteson,  for  plaintiff  in  error;  and  H.  R.  Pollard,  contra. 

McKenna,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

The  Supreme  Court  of  the  State  sustained  the  statute,  saying 
(p.  752)  that  it  was  neither  *'  unreasonable  nor  unusual  "  and  that 

1  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


EUBANK    i.    CITY    OF   RICHMOND. 


719 


the  court  was  "  justified  in  concluding  that  it  was  passed  by  the 
legislature  in  good  faith,  and  in  the  interest  of  the  health,  safety, 
comfort,  or  convenience  of  the  public,  and  for  the  benefit  of  the 
property  o^\^lers  generally  who  are  affected  by  its  provisions;  and 
that  the  enactment  tends  to  accomphsh  all,  or  at  least  some,  of 
these  objects."  The  court  further  said  that  the  validity  of  such 
legislation  is  generally  recognized  and  upheld  as  an  exercise  of  the 
police  power. 

Whether  it  is  a  valid  exercise  of  the  police  power  is  the  question 
in  the  case,  and  thaXP^'^^-pr  ^^'^^  ^^'^^'^  defined,  as  far  as  it  is  capable 
of  being  defined  by  general  words,  a  number  of  tunes.  It  is  not 
susceptible  of  circumstantial  precision.  It  extends,  we  have  said^ 
not  only  to  regulations  which  promote  the  public  health,  morals,~ 
nnd  safer V ■  IjuTtolhose  whicTTpfbmote  the  public  coiTvenience~or 
tTTe  gen^rid  prosperity:  CTB.  &  Q.  Ry.  Co.  v.  Drainage  Com- 
missioners, 200  L .  S'.  o()l.  And  further,  "  It  is  the  most  essential  of 
powers,  at  times  the  most  insistent,  and  always  one  of  the  least 
limitable  of  the  powers  of  government."  District  of  Columbia  v. 
Brooke,  214  U.  S.  138,  149.  But  necessarily  it  has  its  limits  and 
must  stop  when  it  encounters  the  prohibitions  of  the  Constitution. 
A  clash  will  not,  however,  be  lightly  inferred.  Governmental 
power  must  be  flexible  and  adaptive.  Exigencies  arise,  or  even 
conditions  less  peremptory,  which  may  call  for  or  suggest  legisla- 
tion, and  it  may  be  a  struggle  in  judgment  to  decide  whether  it 
must  yield  to  the  higher  considerations  expressed  and  determined 
by  the  provisions  of  the  Constitution.  Noble  State  Bank  v.  Has- 
kell, 219  U.  S.  104.  The  point  where  particular  interests  or  prin- 
ciples balance  "  cannot  be  determined  by  any  general  formula 
in  advance."     Hudson  Water  Co.  v.  'McCarter,  209  U.  S.  349, 

355. 

But  in  ail  the  cases  there  is  the  constant  admonition  both  in  their 
rule  and  examples  that  when  a  statute  is  assailed  as  offending 
against  the  higher  guaranties  of  the  Constitution  it  must  clearly 
do  so  to  justify  the  courts  in  declaring  it  invalid.  This  condition 
is  urged  by  defendant  in  error,  and  attentive  to  it  we  approach  the 
consideration  of  the  ordinance. 

It  leaves  no  discretion  in  the  committee  on  streets  as  to  whether 
the  street  Ime  shall  or  shall  not  be  established  in  a  given  case.  The 
action  of  the  committee  is  determmed  by  two-thirds  of  the  property 
owners.  In  other  words,  part  of  the  property  owaiers  frontuig  on 
the  block  determine  the  extent  of  use  that  other  owners  shall  make 
of  their  lots,  and  against  the  restriction  they  are  impotent.     This 


720         THE    FOURTEENTH    AMENDMENT   AND    POUCE    POWER. 

we  emphasize.  One  set  of  owners  cU-termine  not^ 
of  usebut  the  kind  of  u^p  wliicli  Miiother  set  o^^ntT.*  m;tT-TTn»ke 
of  theirproperty.  In  what  wmv  is  the  public  safety  i-onvenience  or 
Ti-oifor^  ^^'^nxfl  hr  rnnffflrrinc  "^lirh  p^^-*>g-'^  The  statute  and  onli- 
nance,  while  conferring  the  power  on  some  property  holders  to 
\'irtually  control  and  dispose  of  the  proper  rights  of  others,  creates 
no  standard  by  which  the  power  thus  given  is  to  be  exercised;  in 
other  words,  the  property  holders  who  desire  and  have  the  author- 
ity to  establish  the  line  may  do  so  solely  for  their  own  interest  or 
even  capriciously.  Taste  (for  even  so  arbitrary-  a  thing  as  taste 
may  control)  or  judgment  may  vary  in  localities,  indeed  in  the 
same  locahty.  There  may  be  one  taste  or  judgment  of  comfort  or 
convenience  on  one  side  of  a  street  and  a  different  one  on  the  other. 
There  may  be  diversity  in  other  blocks;  and  \'iewing  them  in 
succession,  their  building  lines  may  be  continuous  or  staggering 
(to  adopt  a  word  of  the  mechanical  arts)  as  the  interests  of  certain 
of  the  property  owners  may  prompt  against  the  interests  of  others. 
The  only  discretion,  we  have  seen,  which  exists  in  the  Street  Com- 
mittee or  in  the  Committee  of  PubUc  Safety,  is  in  the  location  of 
the  line,  between  five  and  thirty  feet.  It  is  hard  to  understand 
how  public  comfort  or  convenience,  much  less  public  health,  can  be 
promoted  by  a  line  which  may  be  so  variously  disposed. 

We  are  testing  the  ordinance  by  its  extreme  possibilities  to  show 
how  in  its  tendency  and  instances  it  enables  the  convenience  or 
purpose  of  one  set  of  property  o\\'ners  to  control  the  property  right 
of  others,  and  property  determined,  as  the  case  may  be,  for  busi- 
ness or  residence  —  even,  it  may  be,  the  kind  of  business  or  char- 
acter of  residence.  One  person  having  a  two-thirds  ownership  of  a 
block  may  have  that  power  against  a  number  ha\'ing  a  less  collec- 
tive ownership.  If  it  be  said  that  in  the  instant  case  there  is  no 
such  condition  presented,  we  answer  that  there  is  control  of  the 
property  of  plaintiff  i"  prrn]-  bv  other  owners  of  property  exerciserf 
under  the  ordjn.'^npe.  Thi.'^,  n.-<  we  have  said,  is  tbe  vice  ot  the  ordi- 
Ti-^ripp^  nnH  fnnlcps;  i^^  we  t.hiTi^an  unreasonable  exercise  of  the  po- 
lice power. 

The  case  requires  no  further  comment.  We  need  not  consider 
the  power  of  a  city  to  establish  a  building  line  or  regulate  the  struc- 
ture or  height  of  buildings.  The  cases  which  are  cited  are  not 
apposite  to  the  present  case.  The  ordinances  or  statutes  which 
were  passed  on  had  more  general  foundation  and  a  more  general 
purpose,  whether  exercises  of  the  poUce  power  or  that  of  eminent 
domain.      Xor  need  we  consider  the  cases  which  distinguish  be- 


CEN'TR.\L    LUMBER    CO.    V.    SOUTH    DAKOTA.  721 

tween  the  esthetic  and  the  material  effect  of  regulations  the  con- 
sideration of  which  occupies  some  space  in  the  argument  and  in  the 
reasoning  of  the  cases. 

Judgment  reversed  and  case  remanded  for  further  proceedings  not 
inconsistent  with  this  opinion. 


CENTRAL   LUMBER   CO.   v.   SOUTH   DAKOTA. 

Supreme  Court  of  the  L'nited  States.     1912. 

[226  Uniled  States,  157.] ' 

Error  to  the  Supreme  Court  of  South  Dakota, 

F.  E.  Wood  and  another,  for  plaintiff  in  error;  and  .V.  B.  Field, 
contra. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  found  guilty  of  unfair  discrimination 
under  Session  Laws  of  South  Dakota  for  1907,  c.  131,  and  was 
sentenced  to  a  fine  of  two  hundred  dollars  and  costs.  It  objected 
in  due  form  that  the  statute  was  contrary  to  the  Fourteenth 
Amendment,  but  on  appeal  the  judgment  of  the  trial  comi:  was 
sustained.  24  So.  Dak.  136.  By  the  statute  any  on^e  "  Engaged 
in  the  production,  manufacture  or  distribution  of  any  cnmmodity 
in  general  use,  that  intentionally,  for  the  purpose  of  destroying  the 
competition  of  any  regular,  established  dealer  in  such  commodity, 
or  to  prevent  the  competition  of  any  person  who  in  good  faith 
intends  and  attempts  to  become  such  dealer,  shall  discriminate 
between  different  sections,  communities,  or  cities  of  this  state,  by 
selling  such  commodity  at  a  lower  rate  in  one  section  .  ,  ,  than 
such  person  .  .  .  charges  for  such  commodity  in  another  section, 
.  ,  ,  after  equalizing  the  distance  from  the  point  of  production," 
<fcc,,  shall  be  guilty  of  the  crime  and  liable  to  the  fine. 

The  subject-matter,  like  the  rest  of  the  criminal  law,  is  under  the 
control  of  the  legislature  of  South  Dakota,  by  xirtue  of  its  general 
powers,  unless  the  statute  conflicts  as  alleged  with  the  Constitu- 
t ion  of  the'United  Stales.  'I'li^  ^iromtcls  on  which  it  is  said  to  do"so 
are  that  it^emgi?  The  equal  protection  ot  the  laws,  because  it  aflects 
the  conduct  of  only  a  particular  class  —  those  selling  goodsJaX^'O 

^  The  rep>orter"s  short  statement  has  been  omitted.  —  Ed. 


722        THE   FOURTEENTH   AMENDMENT  AND   POLICE   POWER. 

places  in  the  State  —  and  is  intended  for  the  protection  of  only  a 
particular  class  —  regular  establislied  dealers:  and  also  )f('rvm</-  li 
unreasonably  limits  tlie  liberty  ol  ])eople  to  make  such  bargains  as 
they  like. 

On  the  first  of  these  points  it  is  said  that  an  indefensible  classifi- 
cation may  be  disguisetl  in  the  form  of  a  descrii)tion  of  the  acts 
constituting  the  offense,  and  it  is  urged  that  to  punish  selling  goods 
in  one  place  lower  than  at  another  in  effect  is  to  select  the  class  of 
dealers  that  have  two  places  of  business  for  a  special  liability,  and 
in  real  fact  is  a  blow  aimed  at  those  who  have  several  lumber  yards 
along  a  line  of  railroad,  in  the  interest  of  independent  dealers.  All 
competition,  it  is  added,  imports  an  attempt  to  destroy  or  prevent 
the  competition  of  rivals,  and  there  is  no  difference  in  principle 
between  the  prohibited  act  and  the  ordinary  efforts  of  traders  at  a 
single  place.  The  premises  may  be  conceded  without  accepting 
the  conclusion  that  this  is  an  imconstitutional  discrimination.  If 
the  legislature  shares  the  now  prevailing  belief  as  to  what  is  public 
policy  and  finds  that  a  particular  instrmiient  of  trade  war  is  being 
used  against  that  policy  in  certain  cases,  it  may  direct  its  law 
against  what  it  deems  the  evil  as  it  actually  exists  without  covering 
the  whole  field  of  possible  abuses,  and  it  may  do  so  none  the  less 
that  the  forbidden  act  does  not  differ  in  kind  from  those  that  are 
allowed.  Lindsley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  81. 
Missouri  Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205. 

That  is  not  the  arbitrary  selection  that  is  condemned  in  such 
cases  as  Southern  Ry.  Co.  v.  Greene,  216  U.  S.  400.  The  Four- 
teenth Amendment  does  not  prohibit  legislation  special  in  charac- 
ter. Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283,  294. 
It  does  not  prohibit  a  State  from  carrying  out  a  policy  that  carmot 
be  pronounced  purely  arbitrary,  by  taxation  or  penal  laws.  Orient 
Insurance  Co.  v.  Daggs,  172  U.  S.  557,  562.  Quong  Wing  v.  Kir- 
kendall,  223  U.  S.  59,  62.  If  a  class  is  deemed  to  present  a  con- 
spicuous example  of  what  the  legislature  seeks  to  prevent,  the 
Fourteenth  Amendment  allows  it  to  be  dealt  with  although  other- 
wise and  merely  logically  not  distinguishable  from  others  not 
embraced  in  the  law.  Carroll  v.  Greenwich  Ins.  Co.,  199  U.  S.  401, 
411.  We  must  assume  that  the  legislature  of  South  Dakota  con- 
sidered that  people  selling  in  two  places  made  the  prohibited  use  of 
their  opportunities  and  that  such  use  was  harmful,  although  the 
usual  efforts  of  competitors  were  desired.  It  might  have  been 
argued  to  the  legislature  with  more  force  than  it  can  be  to  us  that 
recoupment  in  one  place  of  losses  in  another  is  merely  an  instance 


CENTRAL   LUMBER    CO.    V.    SOUTH   DAKOTA.  723 

of  financial  ability  to  compete.  If  the  legislature  thought  that  that 
particular  manifestation  of  ability  usually  came  from  great  cor- 
porations whose  power  it  deemed  excessive  and  for  that  reason  did 
more  harm  than  good  in  their  State,  and  that  there  was  no  other 
case  of  frequent  occurrence  where  the  same  could  be  said,  we 
cannot  review  their  economics  or  their  facts.  That  the  law  em- 
bodies a  widespread  conviction  appears  from  the  decisions  in  other 
States.  State  v.  Drayton,  82  Nebraska,  254.  State  v.  Standard 
Oil  Co.,  Ill  Mmnesota,  85;  126  N.  W.  Rep.  527.  State  v.  Fair- 
mont Creamery,  153  Iowa,  702;  133  N.  W.  Rep.  895.  State  v. 
Bridgeman  &  Russell  Co.,  117  ^Minnesota,  186;  134  N.  W.  Rep. 
496. 

What  we  have  said  makes  it  unnecessary  to  add  much  on  the 
second  point,  if  open,  that  the  law  is  made  in  favor  of  regular 
established  dealers  —  but  the  short  answer  is  simply  to  read  the 
law.  It  extends  on  its  face  also  to  those  who  intend  to  become 
such  dealers.  If  it  saw  fit  not  to  grant  the  same  degree  of  protec- 
tion to  parties  making  a  transitorj'  incursion  into  the  business,  we 
see  no  objection.  But  the  Supreme  Court  says  that  the  statute  is 
aimed  at  preventing  the  creation  of  a  monopoly  by  means  likely  to 
be  employed,  and  certainly  we  should  read  the  law  as  having  in 
view  ultimately  the  benefit  of  buj'ers  of  the  goods. 

Finally,  as  to  the  statute's  depriving  the  plaintiff  in  error  of  its 
liberty  because  it  forbids  a  certain  class  of  dealings,  we  think  it 
enough  to  say  that  as  the  law  does  not  otherwise  encounter  the 
Fourteenth  Amendment,  it  is  not  to  be  disturbed  on  this  ground. 
The  matter  has  been  discussed  so  often  in  this  court  that  we  simply 
refer  to  Chicago,  Burlington  &  Quincy  R.  R.  Co.  v.  McGuire,  219 
U.  S.  549,  567,  568,  and  the  cases  there  cited  to  illustrate  how  much 
power  is  left  in  the  States.  See  also  Grenada  Lumber  Co.  v. 
Mississippi,  217  U.  S.  433,  442.  Lemieux  v.  Young,  211  U.  S.  489, 
496.     Otis  V.  Parker,  187  U.  S.  606,  609. 

Judgment  affirmed. 


724         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 


INTERNATIONAL   HARVESTER   CO.   OF   AMERICA 
V.   MISSOURI. 

Supreme  Court  of  the  United  States.     1914. 

[234  United  Slates,  199.]  ' 

In  the  Supreme  Court  of  ^Missouri  an  information  in  the  nature 
of  quo  warranto  was  brought  to  exclude  the  International  Harvester 
Company,  a  Wisconsin  corporation,  from  the  corporate  ri}i;hts  and 
privileges  exercised  in  Missouri.  The  company  was  licensed  in 
1892  to  engage  in  the  manufacture  and  sale  of  agricultural  imple- 
ments in  Missouri.  In  1902  the  International  Harvester  Company 
of  New  Jersey  was  organized  with  a  capital  stock  of  $120,000,000 
for  the  purpose  of  etifecting  a  combination  with  the  plaintiff  in  error 
and  other  formerly  competing  companies  to  restrain  competition 
in  the  manufacture  and  sale  of  such  implements  in  Missouri;  and 
the  New  Jersey  company  maintained  the  Wisconsin  company  as  its 
sole  selling  agent  in  Missouri.  These  facts  were  found  by  a  special 
commissioner  to  whom  the  case  was  referred  for  the  taking  of 
evidence,  and  the  court  adjutlged  (237  Mo.  309)  that  the  license  be 
forfeited  and  the  company  be  fined  $50,000,  in  accordance  with  the 
Missouri  anti-trust  statutes  of  1899  and  1909,  which  provided  that 
"  all  arrangements  .  .  .  between  any  two  or  more  persons,  de- 
signed ...  to  lessen,  or  which  tend  to  lessen,  lawful  trade,  or  full 
competition  in  the  importation,  transportation,  manufacture  or 
sale  "  in  the  State  "  of  any  product,  commotlity  or  article,  or  thing 
bought  or  sold,"  and  all  arrangements  "  which  are  designed  .  .  . 
to  increase,  or  which  tend  to  increase  the  market  price  of  any  prod- 
uct, commodity  or  article  or  thing,  of  any  class  or  kind  whatso- 
ever bought  and  sold  "  are  void,  and  that  those  offending  "  shall 
be  deemed  and  adjudged  guilty  of  a  conspiracy  in  restraint  of 
trade,  and  that  offending  domestic  corporations  shall  forfeit  their 
charters,  etc.,  and  that  offending  foreign  corporations  shall  forfeit 
their  right  to  do  business  in  the  State,  etc.  Thereupon  this  writ  of 
error  was  taken. 

E.  A.  Bancroft  and  others,  for  plaintiff  in  error;  and  J.  T. 
Barker,  Attorney  General  of  Missouri,  and  others,  contra. 

McKenna,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

In  State  v.  Standard  Oil  Co.,  218  Missouri,  1,  370,  372,  the 
Supreme  Court  held  that  the  anti-trust  statutes  of  the  State  "  are 

^  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


INTERNATIONAL   HARVESTER   CO.    V.    MISSOURI.  725 

limited  in  their  scope  and  operations  to  persons  and  corporations 
dealing  in  commodities,  and  do  not  include  combinations,  of  per- 
sons engaged  in  labor  pursuits."  And,  justifiying  the  statutes 
against  a  charge  of  illegal  discrimination,  the  court  further  said 
that  "  it  must  be  borne  in  mind  that  the  chfferentiation  between 
labor  and  property  is  so  great  that  they  do  not  belong  to  the  same 
general  classification  of  rights,  or  things,  and  have  never  been  so 
recognized  by  the  common  law,  or  by  legislative  enactments." 

Accepting  the  construction  put  upon  the  statute,  but  contesting 
its  legality  as  thus  construed,  plaintiff  in  error  makes  three  conten- 
tions, (1)  The  statutes  as  so  construed  umeasonably  and  arbi- 
trarily limit  the  right  of  contract;  (2)  discruninate  between  the 
vendors  of  commodities  and  the  vendors  of  laVjor  and  services,  and 
(3)  between  vendors  and  purchasers  of  commodities. 

(1)  The  specification  under  this  head  is  that  the  Supreme  Court 
found,  it  is  contended,  benefit  —  not  injury  —  to  the  pul^lic  had 
resulted  from  the  alleged  combination.  Granting  that  this  is  not 
an  overstatement  of  the  opinion  the  answer  is  immediate.  It  is 
too  late  in  the  day  to  assert  against  statutes  which  forbid  combina- 
tions of  competing  companies  that  a  particular  combination  was 
induced  by  good  intentions  and  has  had  some  good  effect.  Ar- 
mour Packing  Co.  v.  United  States,  209  U.  S.  56,  62;  Standard 
Sanitary  Mfg.  Co.  v.  United  States,  226  U.  S.  20,  49.  The.£ur£ose^ 
of  such  statutes  is  to  socure  competition  and  ]^r(>chide  fombinatinns 
w^iich  tend  to  defeat  it.  And  sucIT  is^ex])licitlA:  the  puaKia£_and 
Dohcv  of  the  Alissouri  statutesj^md  they  have  been  sustained  by 
tiiTgupreine  Court.  There  is  nothingm  the  Constitution  oijhe 
United  States  which  precludes  a  Stat_e  from  adopting  and  enforcing 
such  policy"  'lo  so  decide  would  be  stepping  backwards.  Carroll 
i;mreenwicli  Ins.  Co.,  199  U.  S.  401;  Central  Lumber  Co.  v. 
South  Dakota,  226  U.  S.  157.  . 

(2)  and  (3)  Thf^^e  contentions  mav  be  considered  top^ether, 
both  involving  a  charge  of  discrimination  —  the  one  because_the 
iaw"5Qes  not  embrace  vendors  of  labor,  the  other  becausejt  does  not 
coveTpurchasers  of  commodities  as  well  as  vendors  of  them.  Both, 
therefore,  invoke  a  consideration  ot  the  power  of  rl.qssificfltion 
whicE'may'be  exerted  in  the  legislation  of  the  State.  ...  It  may 
be  there  is  restraint  of  competition  in  a  combination  of  laborers  and 
in  a  combination  of  purchasers,  but  that  does  not  demonstrate  that 
legislation  which  does  not  include  either  combination  is  illegal. 
Whether  it  would  have  been  better  policy  to  have  made  such  com- 
prehensive classification  it  is  not  our  province  to  decide.     In  other 


726         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWEU. 

words,  whether  a  combination  of  wage  earncj^s  ^^  pi^clin^-^w^  of 
eonim()(jiti(!s  callcdJVu-  repression  by  law  under  the  conditions  ' 


St^ilc  w:is.  tnr  tli..  I"|'nv^|nfr|r7r7;r thf;  State  to  (h^tcrn^inp. 

We  are  helped  Uttle  in  determininj^  the  legality  of  a  legislative 
classification  by  making  Ijroad  generalizations,  antl  it  is  for  a 
broad  generalization  that  plaintiff  in  error  contends  —  indeed,  a 
generalization  which  includes  all  the  activities  and  occupations  of 
life,  and  there  is  an  enumeration  of  wage  earners  in  emi)hasis  of  the 
discrimination  in  which  manufacturers  and  sellers  are  singled  out 
from  all  others.  The  contention  is  deceptive,  and  yet  it  is  earnestly 
urged  in  various  ways  which  it  would  extend  this  opinion  too 
much  to  detaif.  "  In  dealing  with  restraints  of  trade,"  it  is  said, 
"  the  proper  basis  of  classification  is  obviously  neither  in  com- 
modities nor  services,  nor  in  persons,  but  in  restraints."  A  law,  to 
be  valid,  therefore,  is  the  inflexible  deduction,  cannot  distinguish 
between  "  restraints,"  but  must  apply  to  all  restraints,  whatever 
their  degree  or  effect  or  purpose,  and  that  because  the  Missouri 
statute  has  not  this  universal  operation  it  olTends  against  the 
equality  required  by  the  Fourteenth  Amenthnent.  This  court  has 
decided  many  times  that  a  legislative  classification  does  not  have 
to  possess  such  comprehensive  extent.  Classification  must  l)e 
accommodated  to  the  problems  of  k'gislation,  and  we  decided  m 
Oz5ir1bmnt5ef~CoryT  Union  County  Bank,  207  U.  S.  251,  that  it^ 
may  depend  upon  degrees  of  evil  witiiout  being  arbitrary  or  un- 
n^asoii.-ible.  We  repeated  the  ruling  in  Heath  &  Milligan  Mfg.  Co. 
V.  Worst,  207  U.  S.  338,  in  Engel  v.  O'Malley,  219  U.  S.  128,  in 
Mutual  Loan  Co.  v.  Martell,  222  U.  S.  225,  and  again  in  German 
Alliance  Insurance  Company  v.  Kansas,  233  U.  S.  389,  418.  In  the 
latter  case  a  distinction  was  sustained  against  a  charge  of  dis- 
crimination between  stock  fire  insurance  companies  and  farmers' 
mutual  insurance  companies  insuring  farm  property.  If  this  power 
of  classification  did  not  exist,  to  what  straits  legislation  would  be 
brought.  We  may  illustrate  by  the  examples  furnished  by  plain- 
tiff in  error.  In  the  enumeration  of  those  who,  it  is  contended,  by 
combination  are  able  to  restrain  trade  are  included,  among  others, 
"  persons  engaged  in  domestic  service  "  and  "  nurses,"  and  because 
these  are  not  embraced  in  the  law,  plaintiff  in  error,  it  is  contended, 
although  a  combination  of  companies  uniting  the  power  of  $120,- 
000,000  and  able  thereby  to  engross  85  %  or  90  %  of  the  trade  in 
agricultural  implements,  is  nevertheless  beyond  the  competency  of 
the  legislature  to  prohibit.  As  great  as  the  contrast  is,  a  greater 
one  may  be  made.     Under  the  principle  applied  a  combination  of 


INTERNATIONAL   HARVESTER    CO.    V.    KENTUCKY.  727 

all  the  great  industrial  enterprises  (and  why  not  railroads  as  well  ?) 
could  not  be  condemned  unless  the  law  applied  as  well  to  a  com- 
bination of  maidservants  or  to  infants'  nurses,  whose  humble 
functions  preclude  effective  combination.  Such  contrasts  and  the 
considerations  they  suggest  must  be  pushed  aside  by  government, 
and  a  rigid  and  universal  classification  applied,  is  the  contention  of 
plaintiff  in  error;  and  to  this  the  contention  must  come.  Achnit 
exceptions,  and  you  achnit  the  power  of  the  legislature  to  select 
them.  But  it  may  be  said  the  comparison  of  extremes  is  forensic, 
and,  it  may  be,  falacious;  that  there  may  be  powerful  labor  com- 
binations as  well  as  powerful  industrial  combinations,  and  weak 
ones  of  both,  and  that  the  law  to  be  valid  cannot  distinguish 
between  strong  and  weak  offenders.  This  may  be  granted 
(Engel  V.  O'Malley,  supra),  but  the  comparisons  are  not  without 
value  in  estimating  the  contentions  of  plaintiff  in  error.  The 
foundation  of  our  decision  is,  of  course,  the  power  of  classi- 
fication  whicii  a  legislature  may  exercise,  and  the  cases  we  haTe 
cited,  as  well  as  others  which  may  be  cited,  demonstrate  that  some 
latitude  must  be  allowed  to  the  legislative  judgment  in  selecting  the 
"  basis  of  community."  \\>Jiave  said  that  it  must  be  palpably 
arbitrary  to  authorize  a  judicial  review  ot  it,  and  that  it  cannot  be 
disturbed  by  the  courts  "  unless  they  can  see  cleariythat  there  is  no~ 
fair  reason  for  the  law  that  would  not  require^With  equal  foTce  its 
extension  to  others  whom  it  leaves  untouched."  Mo.,  Kan.  &  i'ex. " 
R\^  Co.  V.  May,  194  L  .  S.  207,  i>()D;  Williams  r.' Arkansas,  217  U.  S. 
79,  90;  Watson  v.  Maryland,  218  U.  S.  173,  179.  .  .  . 

Judgment  affirmed.^ 


INTERNATIONAL   HARVESTER   CO.   OF  AMERICA 
V.   KENTUCKY. 

Supreme  Court  of  the  United  States.     1914. 

[234  United  States,  216.]  ^ 

Error  to  the  Court  of  Appeals  of  Kentucky. 
A.  P.  Humphrey  and  others,  for  plaintiff  in  error;    and  James 
Garnett,  Attorney  General  of  Kentucky,  and  others,  contra. 

>  See  Rosenthal  v.  New  York,  226  U.  S.  260  (1912);  Chicago  Dock  and 
Canal  Co.  v.  Fraley,  228  U.  S.  680  (1913);  and  Keokee  Consolidated  Coke 
Co.  V.  Taylor,  234  U.  S.  224  (1914).  —  Ed. 

2  The  reporter's  short  statement  has  been  omitted.  —  Ed. 


728         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

The  pkiintiff  in  error  was  prosecuted,  convicted  and  fined  in  three 
different  counties  for  having  entered  into  an  agreement  with  other 
named  companies  for  the  purpose  of  controlhng  the  price  of  har- 
vesters, &c.  manufactured  by  them  and  of  enliancing  it  above  their 
real  value;  and  for  having  so  fixed  antl  enhanced  the  price,  antl  for 
having  sold  their  harvesters,  &c.  at  a  price  in  excess  of  their  real 
value,  in  pursuance  of  the  agreement  alleged.  The  jutlgments 
were  affirmed  by  the  Court  of  Appeals.  147  Kentucky,  504.  Id. 
795.  148  Kentucky,  572.  The  plaintiff  in  error  saved  its  rights 
under  the  Fourteenth  Amenchnent  and  brought  the  cases  here. 

The  law  of  Kentucky  in  its  present  form  is  the  result  of  the  con- 
struction of  several  statutes  somewhat  far  apart  in  time  and  of 
seemingly  contradictory  import.  .  .  . 

When  the  Court  of  Appeals  came  to  deal  with  the  act  of  1890,  the 
constitution  of  1891,  and  the  act  of  1906,  it  reached  the  conclusion, 
\\rEch  now  may  be  regarded  as  the  establishetl  construction  of  the 
three  taken  together,  that  by  interaction  and  to  avoid  questions  of 
constitutionality,  they  were  to  be  taken  to  make  any  combination 
for  the  purpose  of  controlling  prices  lawful  unless  for  the  purpose 
or  with  the  effect  of  fixing  a  price  that  was  greater  or  less  than  the 
real  value  of  the  article.  Owen  County  Burley  Tobacco  Society  v. 
Brumback,  128  Kentucky,  137,  151.  Commonwealth  v.  Inter- 
national Harvester  Co.  of  America,  131  Kentucky,  551,  568,  571- 
573.  International  Harvester  Co.  of  America  v.  Commonwealth, 
137  Kentucky,  668.  .  .  . 

The  plaintiff  in  error  contends  that  the  law  as  construed  offers  no 
standard  of  conduct  that  it  is  possible  to  know.  To  meet  this,  hi 
the  present  and  earlier  cases  the  real  value  is  declared  to  be  "  its 
market  value  under  fair  competition,  and  under  normal  market 
conditions."  147  Kentucky,  566.  Commonwealth  i'.  International 
Harvester  Co.  of  America,  131  Kentucky,  551,  576.  Interna- 
tional Harvester  Co.  of  America  v.  Conunonw^ealth,  137  Kentucky, 
668,  677,  678.  We  have  to  consider  whether  in  application 
this  is  more  than  an  illusory  form  of  words,  when  nuae  years  after  it 
was  incorporated,  a  combination  invited  by  the  law  is  required  to 
guess  at  its  peril  what  its  product  w^ould  have  sold  for  if  the  com- 
bination had  not  existed  and  nothing  else  violently  affectmg  values 
had  occurred.  It  seems  that  since  1902  the  price  of  the  machinery 
sold  by  the  plaintiff  in  error  has  risen  from  ten  to  fifteen  per  cent. 
The  testimony  on  its  behalf  showed  that  meantime  the  cost  of 
materials  used  had  increased  from  20  to  25  per  cent  and  labor  27| 


INTERNATIONAL    HARVESTER    CO.    V.    KENTUCKY.  729 

per  cent.  Whatever  doubt  there  may  be  about  the  exact  figures 
we  hardly  suppose  the  fact  of  a  rise  to  be  denied.  But  in  order  to 
reach  what  is  called  the  real  value,  a  price  from  which  all  effects  of 
the  combination  are  to  be  eliminated,  the  plaintiff  in  error  is  told 
that  it  cannot  avail  itself  of  the  rise  in  materials  because  it  was  able 
to  get  them  cheaper  through  one  of  the  subsidiary  companies  of  the 
coml)ination,  and  that  the  saving  through  the  combination  more 
than  offset  all  the  rise  in  cost. 

This  perhaps  more  plainly  concerns  the  justice  of  the  law  in  its 
bearing  upon  the  plaintiff  in  error,  when  compared  vnih  its  opera- 
tion upon  tobacco  raisers  who  are  said  to  have  doubled  or  trebled 
their  prices,  than  on  the  constitutional  question  proposed.  But  it 
also  concerns  that,  for  it  shows  how  impossible  it  is  to  think  away 
the  principal  facts  of  the  case  as  it  exists  and  say  what  would  have 
been  the  price  in  an  imaginary  world.  Value  is  the  effect  in  ex- 
change of  the  relative  social  desire  for  compared  objects  expressed 
in  terms  of  a  common  denominator.  It  is  a  fact  and  generally  is 
more  or  less  easy  to  ascertain.  But  what  it  would  be  wdth  such 
increase  of  a  never  extinguished  competition  as  it  might  be  guessed 
would  have  existed  had  the  combination  not  been  made,  with 
exclusion  of  the  actual  effect  of  other  abnormal  influences,  and,  it 
would  seem  with  exclusion  also  of  any  increased  efficiency  in  the 
machines  but  with  inclusion  of  the  effect  of  the  combination  so  far 
as  it  was  economically  beneficial  to  itself  and  the  community,  is  a 
problem  that  no  human  ingenuity  could  solve.  The  reason  is  not 
the  gerueral  uncertainties  of  a  jury  trial  but  that  the  elements  neces- 
sary to  determine  the  imaginary  ideal  are  uncertain  both  in  nature 
and  degree  of  effect  to  the  acutest  commercial  mind.  The  very 
community,  the  intensit}'  of  whose  wish  relatively  to  its  other  com- 
I)eting  desires  determines  the  price  that  it  would  give,  has  to  be 
supposed  differently  organized  and  subject  to  other  influences 
than  those  under  which  it  acts.  It  is  easy  to  put  simple  cases;  but 
the  one  before  us  is  at  least  as  complex  as  we  have  supposed,  and 
the  law  must  be  judged  by  it.     In  our  opinion  it  cannot  stand. 

We  regard  this  decision  as  consistent  with  Nash  v.  United  States, 
229  U.  S.  373,  377,  in  which  it  was  held  that  a  criminal  law  is  not 
unconstitutional  merely  because  it  throws  upon  men  the  risk  of 
rightly  estimating  a  matter  of  degree  —  what  is  an  undue  restraint 
of  trade.  That  deals  with  the  actual,  not  with  an  imaginary  con- 
dition other  than  the  facts.  It  goes  no  further  than  to  recognize 
that,  as  with  negligence,  between  the  two  extremes  of  the  obviously 
illegal  and  the  plainly  lawful  there  is  a  gradual  approach  and  that 


730         THE    FOURTEENTH    AMENDMENT    AND    POLICE    POWER. 

the  complexity  of  life  makes  it  impossible  to  draw  a  line  in  advance 
witliout  an  artificial  simplification  that  would  be  unjust.  The 
conditions  are  as  permanent  as  anything  human,  and  a  great  body 
of  precedents  on  the  civil  side  coupled  with  famihar  practice  make 
it  comparatively  easy  for  common  sense  to  keep  to  what  is  safe. 
But  if  business  is  to  go  on,  men  must  unite  to  do  it  and  must  sell 
their  wares.  To  compel  them  to  guess  on  peril  of  indictment  what 
the  community  would  have  given  for  them  if  the  continually 
changing  conditions  were  other  than  they  are,  to  an  uncertam 
extent;  to  divine  prophetically  what  the  reaction  of  only  partially 
determinate  facts  would  be  upon  the  imaginations  and  desires  of 
purchasers,  is  to  exact  gifts  that  mankind  does  not  possess. 

Judgments  reversed. 
McKenna  and  Pitney,  J  J.,  dissent. 


THE  JEFFREY   MANUFACTURING   CO.  v.  BLAGG. 

Supreme  Court  of  the  United  States.     1915. 
[235  United  Slates,  571.] » 

Error  to  the  Supreme  Court  of  Ohio. 

In  the  Common  Pleas  Court  of  Frankhn  County  action  was 
brought,  under  the  Workmen's  Compensation  Act  of  Ohio,  to 
recover  for  injuries  received  by  Blagg  while  in  the  service  of  The 
Jeffrey  Manufacturing  Co.  A  recovery  was  had,  and  the  judg- 
ment was  affirmed  in  the  Court  of  Appeals  and  in  the  Supreme 
Court  of  Ohio. 

Ar7iold  and  another,  for  plaintiff  in  error;  and  Rector  and  others, 
contra. 

1  A  statement  has  been  framed  upon  the  opinion.— Ed. 


JEFFREY    MFG.    CO.    V.    BLAGG. 


731 


Day,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  constitutionality  of  the  act  was  sustained  against  many 
objections  after  full  consideration  by  the  Supirenie  Court  of  Ohio 
in  State,  ex  rel  Yaple,  v.  Creamer,  85  O.  S.  349.    The  validity  of  the 
act  in  a  single  feature  is  here  brought  in  question.     To  decide  it  ren- 
ders some  examination  of  its  provisions,  as  outluied  m  Sections 
1465,  et  seq.,  of  Vol.  1,  Page  &  Adams'  annotated  General  Code  of 
Ohio.     The  act  is  intended  to  create  a  state  insurance  fund  for  the 
benefit  of  injured,  and  the  dependents  of  killed,  employes.     The 
general  scheme  of  the  law  is  to  provide  compensation  by  means  of 
procedure  before  a  board,  for  injuries  not  wilfully  self-inflicted,  re- 
ceived by  employes  in  the  course  of  their  employment.     The  em- 
ployer who  complies  vnth  the  law  is  relieved  from  liability  for 
injury  or  death  of  an  employe  who  has  complied  with  the  terms  of 
the  act,  except  the  injury  arise  from  the  wilful  act  of  the  employer, 
his  officer  or  agent,  or  from  failure  to  comply  with  laws  enacted  for 
protection  of  the  employe,  in  which  event  the  injured  may  sue  for 
damages  or  recover  under  the  act.     It  is  one  of  the  laws  which  have 
become  more  or  less  common  in  the  States,  and  aims  to  substitute 
a  method  of  compensation  by  means  of  investigation  and  hearing 
before  a  board,  for  wliat  was  regarded  as  an  unfair  and  inadequate 
system,  based  upon  statutes  or  the  common  law.     The  purpose  of 
the  act,  as  appears  from  its  title,  is  to  provide  a  fund  out  of  which 
reparation  in  such  cases  shall  be  made.      For  that  purpose  the 
employments  are  classified  by  the  State  Liability  Board  of  Awards, 
with  reference  to  their  degree  of  hazard  and  risk,  and  rates  of 
premiums  fixed,  bixsed  upon  the  total  payroll  and  number  of 
employes  in  each  of  the  classes  of  employments,  the  purpose  bemg 
to  establish  a  fund  adequate  to  provide  for  the  compensation 
required  in  the  act,  and  to  create  a  surplus  sufficiently  large  to 
guarantee  a  state  insurance  fund  from  year  to  year.      (Section 
1465-53,   General   Code.)       Ever\'   employer   who   employs  five 
workmen  or  more  regularly  in  the  same  business  or  in  the  same 
estalilishment,  who  pays  into  the  fund  in  accordance  with  the 
requirements  of  the  act,  is  not  liable  to  respond  in  damages  at  com- 
mon law  or  by  statute,  save  as  m  the  act  provided,  for  mjuries  or 
deaths  of  anv  such  employes,  provided  the  employes  remam  m  the 
service  with  notice  that  the  employer  has  paid  into  the  state  insur- 
ance fund  the  premiums  required  by  the  act.     (Section  1465-57, 
General  Code.)      Section  1465-60  provides  that  "  all  employers 
who  employ  five  or  more  workmen  or  operatives  regularly  m  the 
same  business,  or  in  or  about  the  same  establishment  who  shall  not 


732         THE    FOURTEENTH   AMENDMENT   AND    POLICE    POWER. 

pay  into  the  state  insurance  fund  the  premiums  provided  by  this 
act,  shall  be  liable  to  their  employes  for  damages  suffered  by  reason 
of  personal  injuries  sustained  in  the  course  of  employment  caused 
by  the  wrongful  act,  neglect  or  default  of  the  employer,  or  any  of 
the  employer's  officers,  agents  or  employes,  and  also  to  the  personal 
representatives  of  such  employes  where  death  results  from  such 
injuries  and  in  such  action  the  defendant  shall  not  avail  himself  or 
itself  of  the  following  common  law  defenses:  The  defense  of  the 
fellow-servant  rule,  the  defense  of  the  assumption  of  risk,  or  the 
defense  of  contributory  negligence.".  .  . 

The  validity  of  the  act  in  a  single  feature  is  here  brought  in 
question.  .  .  . 

"  The  sole  question  presented,"  says  the  counsel  for  the  plaintiff 
in  error,  "  is  whether  the  Ohio  Workmen's  Compensation  Act  con- 
travenes the  provisions  of  Section  1  of  the  Fourteenth  Amendment 
...  in  that  the  classification  of  employers  and  employes  created 
by  the  act  is  arbitrary  and  unreasonable."  .  .  . 

The  fact  that  the  negligence  of  a  fellow  servant  is  more  likely  to 
be  a  cause  of  injury  in  the  large  establishments,  enaploying  many 
in  their  service,  and  that  assumed  risk  may  be  different  in  such  es- 
tablishments than  in  smaller  ones,  is  conceded  in  argument,  and 
is,  we  thinlv,  so  obvious,  that  the  state  legislature  cannot  be  deemed 
guilty  of  arbitrary  classification  in  making  one  rule  for  large  and 
another  for  small  establishments  as  to  these  dt^fenses. 

The  stress  of  the  present  argument,  in  the  brief  and  at  the  bar, 
is  upon  the  feature  of  the  law  which  takes  away  the  defense  of 
contributory  negligence  from  establishments  employing  five  or 
more  and  still  permits  it  to  those  concerns  which  employ  less  than 
five.  Much  of  the  argument  is  based  upon  the  supposed  wrongs  to 
the  employe,  and  the  alleged  injustice  and  arbitrary  character  of 
the  legislation  here  involved  as  it  concerns  him  alone,  contrasting 
an  employe  in  a  shop  with  five  employes  with  those  having  less. 
No  employe  is  complainmg  of  this  act  in  this  case.  The  argument 
based  upon  such  discrimination,  so  far  as  it  affects  employes  by 
themselves  considered,  cannot  be  decisive;  for  it  is  the  well-settled 
rule  of  this  court  that  it  only  hears  objections  to  the  constitution- 
ality of  laws  from  those  who  are  themselves  affected  by  its  alleged 
unconstitutionality  in  the  feature  complained  of.  Southern  Rail- 
way V.  King,  217  U.  S.  524,  534;  Engel  v.  O'Malley,  219  U.  S. 
128,  135;  Standard  Stock  Food  Co.  v.  Wright,  225  U.  S.  540,  550; 
Yazoo  &  Mississippi  Valley  R.  R.  v.  Jackson  Vinegar  Co.,  226  U.  S. 
217,  219;  Rosenthal  v.  New  York,  226  U.  S.  260,  271;   Darnell  v. 


JEFFREY   MFG.    CO.    V.    BLAGG.  733 

Indiana,  226  U.  S.  390,  393;  Plymouth  Coal  Co.  v.  Pennsylvania, 
232  U.  S.  531,  544;  Missouri,  Kansas  &  Texas  R^^  Co.  v.  Cade,  233 
U.  S.  642,  648. 

The  question  now  is:  Are  employers  who  fail  to  come  into  the 
plan  of  the  statute  by  complying  with  its  requirements,  who  em- 
ploy five  men  or  more,  arbitrarily  discriminated  against,  because 
of  the  provisions  of  the  act  which  deprive  them  of  the  benefit  of  the 
defense  of  contributory  negligence  of  the  employe,  while  the  smaller 
employers,  employing  four  or  less,  may  still  find  such  defense 
available  ? 

This  court  has  many  times  affirmed  the  general  proposition  that 
it  is  not  the  purpose  of  the  Fourteenth  Amendment  in  the  equal 
protection  clause  to  take  from  the  States  the  right  and  power  to 
classify  the-subject  of  legislation.  It  is  only  when  such  attempted 
classification  is  arbitrary  and  unreasonable  that  the  court  can 
declare  it  beyond  the  legislative  authority.  Lindsley  v.  Natural 
Carbonic  Gas  Co.,  220  U.  S.  61,  78,  and  previous  cases  in  this  court 
cited  on  page  79.  That  a  law  may  work  hardship  and  inequality 
is  not  enough.  Many  valid  laws  from  the  generality  of  their  appli- 
cation necessarily  do  that,  and  the  legislature  must  be  allowed  a 
wide  field  of  choice  in  determining  the  subject  matter  of  its  laws, 
what  shall  come  within  them,  and  what  shall  be  excluded.  Classi- 
fications of  industries  with  reference  to  police  regulations,  based 
upon  the  number  of  employes,  have  been  sustained  in  this  court. 
St.  Louis  Consolidated  Coal  Co.  v.  Illinois,  185  U.  S.  203.  In  that 
case,  an  inspection  law  of  the  State  was  sustained,  which  was 
applicable  only  to  mines  employing  five  men  or  more  at  any  one 
time.  This  case  was  cited  with  approval,  and  its  doctrine  applied, 
in  McLean  v.  Arkansas,  211  U.  S.  539,  where  a  law  regulating  the 
payment  of  wages  in  coal  mines  in  Arkansas  was  sustained  though 
made  applicable  only  where  not  less  than  ten  miners  were  em- 
ploj'ed. 

Certamly  in  the  present  case  there  has  been  no  attempt  at  unjust 
and  discriminatory  regulations.  The  legislature  was  formulating 
a  plan  which  should  provide  more  adequate  compensation  to  the 
beneficiaries  of  those  killed  and  to  the  uijured  in  such  establish- 
ments, by  regulating  concerns  having  five  or  more  employes.  It 
included,  as  we  have  said,  all  of  that  class  of  institutions  in  the 
State. 

No  employer  is  obliged  to  go  into  this  plan.  He  may  stay  out  of 
it  altogether  if  he  will.  Not  opemng  the  door  of  the  statute  to 
those  employing  less  than  five,  still  leaving  them  to  the  obligations 


734         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

and  rules  of  the  common  and  existing  statute  law,  the  legislature 
may  have  believed  that,  having  regard  to  local  conditions,  of  which 
they  must  be  presumed  to  have  better  knowledge  than  we  can  have, 
such  regulation  covered  practically  the  whole  field  which  needed  it 
and  embraced  all  the  establishments  of  the  State  of  any  size,  and 
that  those  so  small  as  to  employ  only  four  or  less  might  be  regarded 
as  a  negligible  (quantity  and  need  not  be  assessed  to  make  up  the 
guaranty  fund  or  covered  by  the  methods  of  compensation  which 
are  provided  by  this  legislation.  This  is  not  a  statute  which 
simply  declares  that  the  defense  of  contributory  negligence  shall  be 
available  to  employers  having  less  than  five  workmen,  and  un- 
available to  cmi)loyers  with  five  and  more  in  their  service.  This 
provision  is  part  of  a  general  plan  to  raise  funds  to  pay  death  and 
injury  losses  by  assessing  those  establishments  which  ^employ  five 
and  more  persons  and  Avhich  voluntarily  take  advantage  of  the 
law.  Those  remaining  out  and  who  might  come  in  because  of  the 
number  employed  are  deprived  of  certain  defenses  which  the  law 
might  abolish  as  to  all  if  it  was  seen  fit  to  do  so.  If  a  line  is  to  be 
drawn  in  making  such  laws  by  the  number  employed,  it  may  be 
that  those  very  near  the  dividing  line  will  be  acting  under  practi- 
cally the  same  conditions  as  those  on  the  other  side  of  it,  but  if  the 
State  has  the  right  to  pass  police  regulations  based  upon  such  dif- 
ferences, —  and  this  court  has  held  that  it  has,  —  we  must  look  to 
general  results  and  practical  divisions  between  those  so  large  as  to 
need  regulation  and  those  so  small  as  not  to  require  it  in  the  legis- 
lative judgment.  It  is  that  judgment  which,  fairly  and  reason- 
ably exercised,  makes  the  law;  not  ours. 

We  are  not  prepared  to  say  that  this  act  of  the  legislature,  in 
brmging  within  its  terms  all  establishments  having  five  or  more 
employes,  including  the  deprivation  of  the  defense  of  contributory 
neghgcnce  where  such  establishments  neglect  to  take  the  benefit 
of  the  law,  and  leaving  the  employers  of  less  than  five  out  of  the 
act,  was  classification  of  that  arbitrary  and  unreasonable  nature 
which  justifies  a  court  in  declaring  this  legislation  unconstitutional. 

It  follows  that  the  judgment  of  the  Supreme  Court  of  the  State 

of  Ohio  is 

Affirmed. 


COPPAGE   V.    KANSAS.  735 

COPPAGE  V.   IvANSAS. 

Supreme  Court  of  the  United  States.     1915. 

[236  United  States,  1.]  ^ 

Error  to  the  Supreme  Court  of  Kansas. 

By  a  Kansas  statute  (Session  Laws,  1903,  c.  222,  and  Gen.  Stat. 
1909,  sees.  4674-4675),  entitled  "  An  Act  to  provide  a  penalty  for 
coercing  or  influencing  or  making  demands  upon  or  requirements 
of  employes,  servants,  laborers,  and  persons  seeking  emplo}Tnent," 
it  was  enacted  that  "  it  shall  be  unlawful  for  any  individual  or 
member  of  any  firm,  or  am'  agent,  officer  or  employe  of  any 
company  or  corporation,  to  coerce,  require,  demand  or  influence 
any  person  ...  to  enter  into  any  agreement  .  .  .  not  to  join  or 
become  or  remain  a  member  of  any  labor  organization  ...  as  a 
condition  of  .  .  .  securing  employment,  or  continuing  in  the 
employment  of  such  individual,  firm,  or  corporation,"  and  that 
violating  the  act  should  be  deemed  a  misdemeanor  punishable  by 
fine  of  not  less  than  S50  or  Ijy  imprisonment  in  the  county  jail  for 
not  less  than  tliirty  days.  In  a  local  court  Coppage,  superintend- 
ent of  the  St.  Louis  &  San  Francisco  Railway,  was  found  guilty, 
and  adjudged  to  pay  a  fine,  with  imprisonment  as  the  alternative, 
under  an  information  charging  violation  of  the  statute.  Coppage 
had  requested  a  switchman  to  sign  an  agreement  to  withdraw 
from  a  laljor  organization  and  at  the  same  time  had  informed  him 
that  if  he  did  not  sign  he  could  not  remain  in  the  employ  of  the  com- 
pany; and  upon  the  smtch man's  refusal  Coppage  had  discharged 
him.  The  entire  evidence  was  included  in  a  bill  of  exceptions. 
It  included  nothing  indicating  that  the  contract  of  employment 
was  other  than  a  hiring  terminable  at  the  wnll  of  either  party; 
but  it  showed  that  it  would  have  been  to  the  advantage  of  the 
switchman  from  a  pecuniary  point  of  view  and  otherwise  to  retain 
his  membership  and  at  the  same  time  to  remain  in  the  employ. 
The  judgment  was  affirmed  by  the  Supreme  Court  of  Kansas  (87 
Kan.  752),  and  the  case  was  brought  to  the  Supreme  Court  of  the 
United  States  upon  the  ground  that  the  statute,  as  construed  and 
apphed  in  this  case,  conflicts  wdth  the  Fourteenth  Amendment. 

R.  R.  Vermilion  and  another,  for  plaintiff  in  error;    and  J.  S. 
Dawson,  Attorney  General  of  Kansas,  and  another,  contra. 

'  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


730         THE    FOURTEENTH    AMENDMENT    AND    POLICE    POWER. 

Pitney,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

We  have  to  deal,  therefore,  with  a  statute  that,  as  construed  antl 
appHed,  makes  it  a  criminal  offense  punishable  with  fine  or  im- 
prisonment for  an  employer  or  his  agent  to  merely  prescribe,  as  a 
condition  upon  which  one  may  secure  certain  employment  or  re- 
main in  such  employment  (the  employment  being  terminable  at 
will),  that  the  employe  shall  enter  into  an  agreement  not  to  become 
or  remain  a  member  of  any  labor  organization  while  so  employed ; 
the  employe  being  subject  to  no  incapacity  or  disaljility,  but  on 
the  contrary  free  to  exercise  a  voluntary  choice. 

In  Adair  v.  United  States,  208  U.  S.  161,  this  court  had  to  deal 
with  a  question  not  distinguishable  in  principle  from  the  one  now 
presented.  Congress,  in  section  10  of  an  act  of  June  1,  1898,  en- 
titled "An  Act  concerning  carriers  engaged  in  interstate  com- 
merce and  their  employes"  (c.  370,  30  Stat  424,  428),  had 
enacted  "  That  any  employer  subject  to  the  provisions  of  this  Act 
and  any  officer,  agent,  or  receiver  of  such  employer,  who  shall  re- 
quire any  employe,  or  any  person  seeking  employment,  as  a  con- 
dition of  such  employment,  to  enter  into  an  agreement,  either 
written  or  verbal,  not  to  become  or  remain  a  meml)er  of  any  labor 
corporation,  association,  or  organization;  or  shall  threaten  any 
employe  with  loss  of  employment,  or  shall  unjustly  discriminate 
against  any  employ^  because  of  his  membership  in  such  a  labor 
corporation,  association,  or  organization  ...  is  hereby  declared 
to  be  guilty  of  a  misdemeanor.  ..."  Adair  was  convicted  uiJon 
an  indictment  charging  that  he  .  .  .  discriminated  against  a 
certain  employe  by  discharging  him  from  the  employ  of  the  carrier 
because  of  his  membership  in  a  labor  organization.  The  court 
held  that  portion  of  the  Act  upon  which  the  conviction  rested  to 
be  an  invasion  of  the  personal  liberty  as  well  as  of  the  right  of 
property  guaranteed  by  the  Fifth  Amendment,  which  declares 
that  no  person  shall  be  deprived  of  liberty  or  property  without 
due  process  of  law.  .  .  . 

If  Congress  is  prevented  from  arbitrary  interference  with  the 
liberty  of  contract  because  of  the  "  due  process  "  provision  of  the 
Fifth  Amendment,  it  is  too  clear  for  argument  that  the  States  are 
prevented  from  the  like  interferencebvvirtue  of  the  corresponding 

clause  of  the  Fourteenth  Amendment;   and  hence  if  it  be  uncon- 

,__^ .  '   "^ 

stitutional  for  Congress  to  deprive  an  employer  of  liberty  or  prop- 
erty for  threatening  an  employe  with  loss  of  employment  or 
discriminatmg  against  him  because  of  his  membership  in  a  labor 
organization,  it  is  unconstitutional  for  a  State  to  similarly  punish 


COPPAGE    V.    KANSAS.  737 

an  employer  for  requiring  his  employe,  as  a  condition  of  securing 
or  retaining  employment,  to  agree  not  to  become  or  remain  a 
meml)er  of  such  an  organization  while  so  employed. 

It  is  true  that,  while  the  statute  that  was  dealt  ^\ath  in  the  Adair 
case  contained  a  clause  substantially  identical  with  the  Kansas  act 
now  under  consideration, —  a  clause  making  it  a  misdemeanor  for 
an  employer  to  require  an  employe  or  applicant  for  employment, 
as  a  condition  of  such  employment,  to  agree  not  to  become  or 
remain  a  member  of  a  labor  organization,  —  the  conviction  was 
based  upon  another  clause,  which  related  to  discharging  an  em- 
ployee because  of  his  membership  in  such  an  organization;  and  the 
decision,  naturally,  was  confined  to  the  case  actually  presented  for 
decision.  .  .  . 

Is  there  any  real  distinction  ?  The  constitutional  right  of  the 
employer  to  discharge  an  employe  because  of  his  membership  in  a 
labor  union  being  granted,  can  the  employer  be  compelled  to  resort 
to  this  extreme  measure  ?  May  he  not  offer  to  the  employe  an 
option,  such  as  was  offered  in  the  instant  case,  to  remain  in  the 
employment  if  he  will  retire  from  the  union;  to  sever  the  former 
relationship  only  if  he  prefers  the  latter  ?  .  .  .  Can  the  right  of 
making  contracts  be  enjoyed  at  all,  except  by  parties  coming 
together  in  an  agreement  that  requires  each  party  to  forego,  during 
the  time  and  for  the  purpose  covered  by  the  agreement,  any  incon- 
sistent exercise  of  his  constitutional  rights  ? 

These  queries  answer  themselves.  The  answers,  as  we  think, 
lead  to  a  single  conclusion:  Under  constitutional  freedom  of  con- 
tract, whatever  either  party  has  the  right  to  treat  as  sufficient 
ground  for  terminating  the  employment,  where  there  is  no  stipula- 
tion on  the  subject,  he  has  the  right  to  provide  against  by  insisting 
that  a  stipulation  respecting  it  shall  be  a  sine  qua  non  of  the  incep- 
tion of  the  emplo3'ment,  or  of  its  continuance  if  it  be  terminable  at 
will.  It  follows  that  this  case  carmot  be  distinguished  from  Adair 
V.  United  States.  .  .  . 

The  principle  is  fundamental  and  vital.  Included  in  the  right  of 
personal  liberty  and  the  right  of  private  property  —  partaking  ot 
the  nature  of  each  —  is  the  right  to  make  contracts  for  the  acquisi- 
tion of  property.  Chief  among  such  contracts  is  that  of  personal 
employment: ,  by  which  labor  and  other  services  are  exchanged  for 
money  or  other  forms  of  propert\\_  If  this  right  be  struck  down  or 
arbitrarily  interfered  vath.,  there  is  a  substantial  impairment  of 
liberty  in  the  long-established  constitutional  sen^ie  The  right  is 
as  essential  to  the  laborer  as  to  \\\?.  capitalist,  to  the  poor  as  to  tne 


738         THE    FOURTEENTH    AMENDMENT    AND    POLICE    POWER. 

rich-  for  the  vast  majority  of  persons  have  no  other  honest  way  to 
begin  to  acquire  property,  save  by  working  for  money. 

An  interference  with  this  hberty  so  serious  iis  that  now  under 
consideration,  and  so  disturbing  of  equahty  of  right,  must  be 
deemed  to  be  arbitrary,  unless  it  be  supportal)le  as  a  reasonal)le 
exercise  of  the  pohce  power  of  the  State.  But,  notwithstamhngthe 
strong  general  presumption  in  favor  of  the  validity  of  state  laws,  we 
do  not  llllUlv  the  statute  in  question,  luseonstrued  mikI  MppluMl  in 
thTsTIise,  can  be  siiSTallied  as  a  legiiunaieexercise  of  that^pmver. 
To  avoid  possible  misuntlerstanamg,  we  should  here  emphasize  .  .  . 
that  so  far  as  its  title  or  enacting  clause  expresses  a  purjiose  to  deal 
with  coercion,  compulsion,  duress,  or  other  undue  influence,  we 
have  no  present  concern  with  it,  because  nothing  of  that  sort  is 
involved  in  this  case.  .  .  .  But,  in  this  case,  the  Kansas  court  of 
last  resort  has  held  that  Coppagc,  the  plaintiff  in  error,  is  a  criminal 
punishable  with  fine  or  imprisonment  under  this  statute  simply 
and  merely  because,  while  acting  as  the  representative  of  the  Rail- 
road Company  and  dealing  with  Hedges,  an  employe  at  will  and  a 
man  of  full  age  and  understanding,  subject  to  no  restraint  or  dis- 
ability, Coppage  insisted  that  Hedges  should  freely  choose  whether 
he  would  leave  the  employ  of  the  Company  or  would  agree  to 
refrain  from  association  uith  the  union  while  so  employed.  This 
constructionjsjfor  all  purposes  of  our  jurisdiction,  conclusive  evi- 
jiaicn-thai-tlie-^tate^f  Kansas  mteiuls  by  Ui^s  legislationTojnmisK 
rnnflunti  Piiifh  '^"  ^^^ti  ^^~^ppage,  although  entirely  devoid  pf  nny 
element  of  coercion,  compulsion,  duress,  or  undueinfluence,  just 
as  certainly  asltlntends  to  ]5umsh  coercion  andllie  likeTT  .  .  I'o 
punislTan  employer  or  his  agent  for  simply  proposing  certain  terms 
of  employment,  under  circumstances  devoid  of  coercion,  duress,  or 
undue  influence,  has  no  reasonable  relation  to  a  declared  purpose  of 
repressing  coercion,  duress,  and  undue  influence.  Nor  can  a  State, 
by  designating  as  "  coercion  "  conduct  which  is  not  such  in  truth, 
render  criminal  any  normal  and  essentially  innocent  exercise  of 
personal  liberty  or  of  property  rights;  for  to  permit  this  would 
deprive  the  Fourteenth  Amendment  of  its  effective  force  in  this 
regard.  .  .  . 

Laying  aside,  therefore,  as  immaterial  for  present  purposes,  so 
miich^of  the  st"atuteas  indicates  a  purpose  to  repress  coercive  prac- 
tice^^whatj)ossiblerelation  has  the  residue  ollhe  Act  to  the  public 
health,  safety,  morals  or  general  welfare  ?  None  is  suggested,  and 
we  are  unable  to  conceive]ofan^^;___The  Act,  as  the  construction 
gi^^  to  it  by  the  state  court  shows,  is  intended  to  deprive  em- 


COPPAGE    V.    KANSAS.  739 

plovers  of  a  part  of  their  liberty  of  contract,  to  the  corresponding 
advantage  of  the  employed  and  the  upbuilding  of  the  labor  organ- 
izations. But  no  attempt  is  made,  or  could  reasonably  be  made,  to 
sustain  the  purpose  to  strengthen  these  voluntary  organizations, 
any  more  than  other  voluntary  associations  of  persons,  as  a  legiti- 
mate object  for  the  exercise  of  the  police  power.  They  are  not 
public  institutions,  charged  by  law  with  public  or  governmental 
duties,  such  as  would  render  the  maintenance  of  their  membership 
a  matter  of  direct  concern  to  the  general  welfare.  If  they  were,  a 
different  question  would  be  presented. 

As  to  the  interest  of  the  employed,  it  is  said  by  the  Kansas 
Supreme  Court  (87  Kansas,  p.  759)  to  be  a  matter  of  common 
knowledge  that  ''  employes,  as  a  rule,  are  not  financially  able  to  be 
as  independent  in  making  contracts  for  the  sale  of  their  labor  as  are 
employers  in  making  contracts  of  purchase  thereof."  No  doubt, 
wherever  the  right  of  private  property  exists,  there  must  and  will  be 
inequalities  of  fortune;  and  thus  it  naturally  happens  that  parties 
negotiating  about  a  contract  are  not  equally  unhampered  by  cir- 
cumstances. This  applies  to  all  contracts,  and  not  merely  to  that 
between  employer  and  employe.  Indeed  a  little  reflection  will 
show  that  wherever  the  right  of  private  property  and  the  right  of 
free  contract  co-exist,  each  party  when  contracting  is  inevitably 
more  or  less  influenced  by  the  question  whether  he  has  much  prop- 
erty, or  little,  or  none;  for  the  contract  is  made  to  the  very  end 
that  each  may  gain  something  that  he  needs  or  desires  more 
urgently  than  that  which  he  proposes  to  give  in  exchange.  And, 
since  it  is  self-evident  that,  unless  all  things  are  held  in  common, 
some  persons  must  have  more  property  than  others,  it  is  from  the 
nature  of  things  impossible  to  uphold  freedom  of  contract  and  the 
right  of  private  property  \\ithout  at  the  same  time  recognizing  as 
legitimate  those  inequalities  of  fortune  that  are  the  necessary  result 
of  the  exercise  of  those  rights.  But  the  Fourteenth  Amendment,  in 
declaring  that  a  State  shall  not  "  deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law,"  gives  to  each  of  these  an 
equal  sanction;  it  recognizes  "  liberty  "  and  "  property  "  as  co- 
existent human  rights,  and  debars  the  States  from  any  unwar- 
ranted interference  with  either. 

And  since  a  State  may  not  strike  them  down  directly  it  is  o]e,ar 
thaljtmay  not  do  so  indirectly,  as  bvfWbvring  in  pfFf^ft  that  t;.hp 


pul:)lic  good  requires  the  removal  of  those  inequalities  that  are 
buCTHF normal  and  mevilable  lesuU  uf  their  exercise,  and  then 
invoking  the  police  power  in  OTcTer  lo  remove  ihe~inequalities. 


740         THE    FOURTEENTH    AMENDMENT   AND    POLICE    POWER. 

without  other  object  in  view.  The  poHce  power  is  broad,  and 
not  easily  defined,  but  it  cannot  be  given  the  wide  scope  that  is 
here  asserted  for  it,  without  in  effect  nuUifying  the  constitutional 
guaranty. 

We  need  not  refer  to  the  numerous  and  familiar  cases  in  which 
this  court  has  held  that  the  power  may  properly  be  exercised  for 
preserving  the  public  health,  safety,  morals,  or  general  welfare, 
and  that  such  police  regulations  may  reasonably  limit  the  enjoy- 
ment of  personal  liberty,  including  tlie  right  of  making  contracts. 
They  are  reviewed  in  Holden  v.  Hardy,  169  U.  S.  366,  391 ;  Chicago, 
B.  &.  Quincy  R.  R.  v.  McGuire,  219  U.  S.  549,  566;  Erie  R.  R. 
V.  Williams,  233  U.  S.  685;  and  other  recent  decisions.  An  evi- 
dent and  controlling  distinction  is  this:  that  in  those  cases  it  has 
been  held  permissible  for  the  States  to  adopt  regulations  fairly 
deemed  necessary  to  secure  some  object  directly  affecting  the  public 
welfare,  even  though  the  enjoyment  of  private  rights  of  liberty  and 
property  be  thereby  incidentally  hampered;  while  in  that  portion 
of  the  Kansas  statute  which  is  now  under  consideration  —  that  is  to 
say,  aside  from  coercion,  etc.  —  there  is  no  object  or  purpose, 
expressed  or  implied,  that  is  claimed  to  have  reference  to  health, 
safety,  morals,  or  public  welfare,  beyond  the  supposed  desirability 
of  leveling  inequalities  of  fortune  by  depriving  one  who  has  prop- 
erty of  some  part  of  what  is  characterized  as  his  "  financial  inde- 
pendence." .  .  . 

Of  course  we  do  not  intend  to  say,  nor  to  intimate,  anything 
inconsistent  with  the  right  of  individuals  to  join  labor  unions,  nor 
do  we  question  the  legitimacy  of  such  organizations  so  long  as  they 
conform  to  the  laws  of  the  land  as  others  are  required  to  do.  Con- 
ceding the  full  right  of  the  individual  to  join  the  union,  he  has  no 
inherent  right  to  do  this  and  still  remain  in  the  employ  of  one  who 
is  unwilling  to  employ  a  union  man,  any  more  than  the  same 
individual  has  a  right  to  join  the  union  without  the  consent  of  that 
organization.  Can  it  be  doubted  that  a  labor  organization  —  a 
voluntary  association  of  working  men  —  has  the  inherent  and  con- 
stitutional right  to  deny  membership  to  any  man  who  will  not 
agree  that  during  such  membership  he  will  not  accept  or  retain 
employment  in  company  with  non-union  men  ?  Or  that  a  union 
man  has  the  constitutional  right  to  decline  proffered  employment 
unless  the  employer  will  agree  not  to  employ  any  non-union 
man  ?  .  .  . 

When  a  man  is  called  upon  to  agree  not  to  becomeor  remain  a 
member  of  the  unioii  while  Working  foi  a  particuIaTemployelr^e 


COPPAGE   V.    KANSAS.  741 

is  in  effect^  only  asked  to  deal  openly  and  frankly  witli  his  em- 
ployer,  so  as  not  toretain  the  employment  uponterms  to  which  tlie* 
~laUer~isliot  willing  to  agree.  And  the  liberty  of  making  contracts 
does  not  include  a  libei'lyto  procure  emplo}Tiient  from  an  miwillTng 
eniployer,  or  without  a  fair  understanding.  Nm^lnay^theemployer 
be  foreclosed  by  legislation  from  exercising  the  same  freedom  of 
choice  that  is  the  right  of  the  employe. 

To  ask  a  man  to  agree,  in  advance,  to  refrain  from  affiliation 
with  the  union  while  retaining  a  certain  position  of  emplojTiient, 
is  not  to  ask  him  to  give  up  any  part  of  his  constitutional  freedom. 
He  is  free  to  decline  the  employment  on  those  terms,  just  as  the 
employer  may  decline  to  offer  employment  on  any  other;  for  "  It 
takes  two  to  make  a  bargain."  Having  accepted  employment  on 
those  terms,  the  man  is  still  free  to  join  the  union  when  the  period 
of  employment  expires;  or,  if  employed  at  will,  then  at  any  time 
upon  simply  quitting  the  employment.  And,  if  bound  by  his  own 
agreement  to  refrain  from  joining  during  a  stated  period  of  em- 
ployment, he  is  in  no  different  situation  from  that  which  is  neces- 
sarily incident  to  term  contracts  in  general.  For  constitutional 
freedom  of  contract  does  not  mean  that  a  party  is  to  be  as  free 
after  making  a  contract  as  before;  he  is  not  free  to  break  it  without 
accountability.  Freedom  of  contract,  from  the  very  nature  of  the 
thing,  can  be  enjoyed  only  by  being  exercised;  and  each  particular 
exercise  of  it  involves  making  an  engagement  which,  if  fulfilled, 
prevents  for  the  time  any  inconsistent  course  of  conduct.  .  .  . 

Judgment  reversed,  and  the  cause  remanded  for  further  proceedings 
not  inconsistent  with  this  opinion. 

Holmes,  J.,  dissenting.  .  .  . 

Day,  J.,  with  whom  concurs  Mr.  Justice  Hughes,  dissenting.  ,  . . 


742      THE    FOURTEENTH   AMENDMENT   AND    PUBLIC    CALLINGS. 

Section  V. 
The  Fourteenth  Amendment  and  Public  Callings. 

MUNN   V.   ILLINOIS. 
Supreme  Court  of  the  United  States.     1877. 
[94  United  States,  113.]  ^ 

Error  to  the  Supreme  Court  of  Illinois. 

In  1872  an  information  was  filed  in  the  Criminal  Court  of  Cook 
County,  alleging  that  Muiin  &  Scott  were  managers  and  lessees  of 
a  public  warehouse  in  Chicago,  known  as  the  Northwestern 
Elevator,  in  which  they  stored  grain  in  bulk  and  mixed  the  grain 
of  different  owners,  and  that  they  unlawfully  transacted  this  busi- 
ness of  public  warehousemen  \vithout  procuring  a  license.  The 
plea  was  not  guilty.  The  Illinois  constitution  of  1870,  art.  13, 
provided  that  "  all  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  property 
stored  be  kept  separate  or  not,  are  declared  to  be  public  ware- 
houses," that  "  the  o\\Tier,  lessee,  or  manager  of  each  .  .  .  public 
warehouse  ...  in  any  .  .  .  city  of  not  less  than  100,000  inliabi- 
tants  shall  make  weeklj^  statements,"  and  that  "  the  general 
assembly  shall  pass  laws  for  the  mspection  of  grain,  for  the  pro- 
tection of  producers,  shippers,  and  receivers  of  grain  and  produce  " ; 
and  the  Illinois  statute  of  April  25,  1871,  enacted  that  (sec.  1) 
"  public  warehouses  as  defined  in  art.  13  of  the  Constitution  .  .  . 
shall  be  divided  into  three  classes,"  that  (sec.  2)  "  public  ware- 
houses of  class  A  shall  embrace  all  warehouses,  elevators,  or 
granaries  in  which  grain  is  stored  in  bulk,  and  in  which  the  grain  of 
different  owners  is  mixed  together,  ...  in  cities  having  not  less 
than  100,000  inhabitants,"  that  (sec.  3)  ''  the  proprietor,  lessee,  or 
manager  of  any  public  warehouse  of  class  A  shall  .  .  .  procure 
...  a  license  "  that,  (sec.  4)  he  "  shall  file  ...  a  bond  ...  in 
the  penal  sum  of  $10,000,  conditions  for  the  faithful  performance 
of  his  duty  as  a  public  warehouseman,"  that  (sec.  5)  "  any  person 
who  shall  transact  the  business  .  .  .  without  ...  a  license  .  .  . 
shall  ...  be  fined  .  .  .  not  less  than  $100  for  .  .  .  every  day," 
and  that  (sec.  15) ''every  warehouseman  .  .  .  of  class  A  shall  .  .  . 
publish  .  .  .  rates  for  the  storage  of  grain;  .  ,  .  and  such  .  .  . 
rates  .  .  .  shall  apply  to  all  grain  .  .  .  from  any  person  or  source ; 
and   no    discrimination    shall    be   made "    and    "  the   maximum 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


MUNN   V.   ILLINOIS.  743 

charge  of  storage  and  handling  of  grain  .  .  .  shall  be  for  the  first 
thirty  days  or  part  thereof  two  cents  per  bushel,"  etc.  In  an 
agreed  statement  of  facts  it  appeared  that  Chicago  was  a  city  of 
more  than  100,000  inhabitants,  and  that  Munn  &  Scott  leased 
gromid  in  1862,  erected  the  elevator  in  that  year,  ever  since  carried 
on  there  the  business  of  storing  and  handling  grain,  charged  rates 
higher  than  those  fixed  by  the  statute,  and  did  not  take  out  tlie 
statutory  license  or  file  the  statutory  bond.  The  defendants  were 
fomid  guilty  and  were  fined  $100.  The  judgment  was  affirmed  by 
the  Supreme  Court  of  Illinois  (two  of  the  five  judges  dissenting), 
whereupon  this  writ  of  error  was  sued  out,  on  the  ground  that 
sections  3,  4,  5,  and  15  of  the  statute  were  repugnant  to  the  Con- 
stitution of  the  United  States,  art.  1,  sec.  8,  clause  3,  and  art.  1, 
"sec.  9,  clause  6,  and  Amendments  V  and  XIV. 

W.  C.  Goudy  and  another,  for  plaintiffs  in  error;  and  J.  K. 
Edsall,  Attorney  General  of  Illinois,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

The  cmestion  to  be  determined  in  this  case  is  whether  the  general 
flKSpmblv  of  Tllinois  can,  under  the  limitations  upon  the  legislative 
power  of  the  States  imposed  by  the  Constitution  of  the  United 
States,  fix  by  law  the  maximum  of  charges  for  the  storage  of  grain 
in  wn.rphniisps  n.t  Chicago  and  other  places  in  the  State  having  not 
less  than  one  hundred  thousand  iifliabitants.  .  .  . 

Every  statute  is  ^i*6sumecl  to  be  constitutional.  The  courts 
ought  not  to  declare  one  to  be  unconstitutional,  unless  it  is  clearly 
so.  If  there  is  doubt,  the  expressed  will  of  the  legislature  should  be 
sustained. 

The  Constitution  contains  no  definition  of  the  word  "  deprive," 
as  used  in  the  Fourteenth  Amendment.  To  determine  its  signifi- 
cation, therefore,  it  is  necessary  to  ascertain  the  effect  which  usage 
has  given  it,  when  employed  in  the  same  or  a  like  connection. 

While  this  provision  of  the  amenchnent  is  new  in  the  Constitu- 
tion of  the  United  States,  as  a  limitation  upon  the  powers  of  the 
States,  it  is  old  as  a  principle  of  civiUzed  government.  It  is  found 
in  Magna  Charta,  and,  in  substance  if  not  in  form,  in  nearly  or 
quite  all  the  constitutions  that  have  been  from  time  to  time  adopted 
by  the  several  States  of  the  Union.  By  the  Fifth  Amendment,  it 
was  introduced  into  the  Constitution  of  the  United  States  as  a 
limitation  upon  the  powers  of  the  national  government,  and  by  the 
Fourteenth,  as  a  guaranty  against  any  encroachment  upon  an 
acknowledged  right  of  citizenship  by  the  legislatures  of  the 
States.  .  . 


744         THE    FOURTEENTH   AMENDMENT   AND    PUBLIC    CALLINGS. 

When  one  becomes  a  member  of  society,  he  necessarily  parts 
with  some  rights  or  privileges  which,  as  an  individual  not  affected 
by  his  relations  to  others,  he  might  retain.  "  A  body  politic,"  as 
aptly  defined  in  the  preamble  of  the  constitution  of  Massachusetts, 
"  is  a  social  compact  by  which  the  whole  people  covenants  with 
each  citizen,  and  each  citizen  with  the  whole  people,  that  all  shall  be 
governed  by  certain  laws  for  the  common  good."  This  does  not 
confer  power  upon  the  whole  people  to  control  rights  which  are 
purely  and  exclusively  private,  Thorpe  v.  R.  &  B.  Railroad  Co.,  27 
Vt.  143;  but  it  does  authorize  the  establishment  of  laws  requiring 
each  citizen  to  so  conduct  himself,  and  so  use  his  own  property,  as 
not  unnecessarily  to  injure  another.  This  is  the  very  essence  of 
goverrmient,  and  has  found  expression  in  the  maxim  sic  utere  tuo  ut 
alienum  non  Icedas.  From  this  source  come  the  police  powers, 
which,  as  was  said  by  Mr.  Chief  Justice  Taney  in  the  License  Cases, 
5  How.  583,  "  are  nothing  more  nor  less  than  the  powers  of  govern- 
ment inherent  in  every  sovereignty,  .  .  .  that  is  to  say,  .  .  .  the 
power  to  govern  men  and  things."  Under  these  powers  the  govern- 
ment regulates  the  conduct  of  its  citizens  one  towards  another,  and 
the  manner  in  which  each  shall  use  his  own  property,  when  such 
regulation  becomes  necessary  for  the  public  good.  In  their  exer- 
cise it  has  been  customar}^  in  England  from  time  immemorial,  and 
in  this  country  from  its  first  colonization,  to  regulate  ferries,  com- 
mon carriers,  hackmen,  bakers,  millers,  wharfingers,  innkeepers, 
&c.,  and  in  so  doing  to  fix  a  maximum  of  charge  to  be  made  for 
services  rendered,  accommodations  furnished,  and  articles  sold. 
To  this  day,  statutes  are  to  be  found  in  many  of  the  States  upon 
some  or  all  these  subjects;  and  we  think  it  has  never  yet  been 
successfully  contended  that  such  legislation  came  within  any  of  the 
constitutional  prohibitions  against  interference  with  private  prop- 
erty. With  the  Fifth  Amendment  in  force.  Congress,  in  1820, 
conferred  power  upon  the  city  of  Washington  "  to  regulate  .  .  . 
the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweeping  of 
chimneys,  and  to  fix  the  rates  of  fees  therefor,  ,  .  .  and  the  weight 
and  quality  of  bread,"  3  Stat.  587,  sect.  7;  and,  in  1848,  "  to  make 
all  necessary  regulations  respecting  hackney  carriages  and  the 
rates  of  fare  of  the  same,  and  the  rates  of  hauling  by  cartmen, 
wagoners,  carmen,  and  draymen,  and  the  rates  of  commission  of 
auctioneers,"  9  id.  224,  sect.  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adoption  of 
the  Fourteenth  Amendment,  it  was  not  supposed  that  statutes 
regulating  the  use,  or  even  the  price  of  the  use,  of  private  property 


MUNN   V.    ILLINOIS.  745 

necessarily  deprived  an  owner  of  his  property  without  due  process 
of  law.  Under  some  circumstances  they  may,  but  not  under  all. 
The  amendment  does  not  change  the  law  in  this  particular:  it 
simply  prevents  the  States  from  doing  that  which  will  operate  as 
such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what  is 
within  and  what  without  its  operative  effect.  Looking,  then,_to 
thp^onmmnn  1;^,a,y,  from  AvhpnnP  p^^nr.^  f  j^g  right  which  the  Constitu- 
tion protects,  we  find  that  when  private  property  is  "  affected  with 
a  "public  interest,  it  ceases  to  he  juris  yrivati  only?'  This  was  said 
by  "Lord  Chief  Justice  Hale  more  than  two  hundred  years  ago,  in 
his  treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts,  78,  and  has 
beQn_accepted  A\dthout  objection  as  an  essential  element  in  thelaw" 
oL-oropertv  ever  since.  Property  does  become  clothed  with  a 
public  interest  when  used  in  a  manner  to  make  it  of  public  conse*- 
quence,  and  affec_ttli£,conimunitv  at  large.  When,  therefore,  one 
devotes  his  property  to  m.  nsp  ip  whjnhjlippiiblif'  hgg  qn  ir^t^r^af^  h  *, 
iiTeffect,  grants  to  the  public  an  interest  in  that  use,  and  must 
submit  to  be  controlled  bv  the  public  for  the  common  good,  to  the 
extent  of  the  interest  he  hns  thus  orpntpH,  He  may  withdraw  his 
grant  by  discontinuing  the  use;  but,  so  long  as  he  maintains  the 
use,  he  must  submit  to  the  control.  .  .  . 

From  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  which  was  done  in  England  as  long  ago  as  the 
third  year  of  the  reign  of  William  and  Mary,  and  continued  until 
within  a  comparatively  recent  period.  And  in  the  first  statute  we 
find  the  following  suggestive  preamble,  to  wit :  — 

"And  whereas  divers  wagoners  and  other  carriers,  by  combination 
amongst  themselves,  have  raised  the  prices  of  carriage  of  goods  in  many 
places  to  excessive  rates,  to  the  great  injury  of  the  trade  :  Be  it,  there- 
fore, enacted,"  &c.  3  W.  &  M.  c.  12,  §  24;  3  Stat,  at  Large  (Great 
Britain),  48L 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties 
to  perform  in  which  the  public  is  interested.  IN  ew  J  ersey  IN  av.  Co. 
V.  Merchants'  Bank,  6  How.  382.  Their  business  is,  therefore, 
"  affected  with  a  public  interest,"  within  the  meaning  of  the  "n^oc- 
trine  which  Lord  Hale  has  so  forcibhL-Stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to 
show  that,  when  private  property  is  devoted  to  a  public  use,  it  is 
subject  to  public  regulation.     It  remains  only  to  ascertain  whether 


74G      THE    FOURTEENTH   AMENDMENT   AND    PUBLIC    CALLINGS. 

the  warehouses  of  these  plaintiffs  in  error,  and  the  business  which  is 
carried  on  there,  come  within  the  operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  con- 
tained in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs 
in  error.     From  these  it  appears  that  "  the  great  producing  region 
of  the  West  and  North-west  sends  its  grain  by  water  and  rail  to 
Chicago,  where  the  greater  part  of  it  is  shipped  by  vessel  for 
transportation  to  the  seaboard  by  the  Great  Lakes,  and  some  of  it 
is  forwarded  by  railway  to  the  Eastern  ports.  .  .  .      Vessels,  to 
some  extent,  are  loaded  in  the  Chicago  harbor,  and  sailed  through 
the  St.   Lawrence  directly  to  Europe.  .  .  .      The  quantity  [of 
grain]  received  in  Chicago  has  made  it  the  greatest  grain  market 
in  the  world.     This  business  has  created  a  demand  for  means  by 
which  the  immense  quantity  of  grain  can  be  handled  or  stored,  and 
these  have  been  found  in  grain  Warehouses,  which  are  commonly 
called  elevators,  because  the  grain  is  elevated  from  the  boat  or 
car,  by  machinery  operated  by  steam,  into  the  bins  prepared  for  its 
reception,  and  elevated  from  the  bins,  by  a  like  process,  into  the 
vessel  or  car  which  is  to  carry  it  on.  .  .  .     In  this  way  the  largest 
traffic  between  the  citizens  of  the  country  north  and  west  of 
Chicago  and  the  citizens  of  the  country  lying  on  the  Atlantic  coast 
north  of  Washington  is  in  grain  which  passes  through  the  elevators 
of  Chicago.      In  this  w^ay  the  trade  in  grain  is  carried  on  by  the 
inhabitants  of  seven  or  eight  of  the  great  States  of  the  West  with 
four  or  five  of  the  States  lying  on  the  sea-shore,  and  forms  the  larg- 
est part  of  inter-state  commerce  in  these  States.     The  grain  ware- 
houses or  elevators  in  Chicago  are  immense  structures,  holding 
from  300,000  to  1,000,000  bushels  at  one  tune,  according  to  size. 
They  are  divided  into  bins  of  large  capacity  and  great  strength. 
.  .  .       They  are  located  with  the  river  harbor  on  one  side  and  the 
railway  tracks  on  the  other;  and  the  grain  is  run  through  them  from 
car  to  vessel,  or  boat  to  car,  as  may  be  demanded  in  the  course  of 
business.      It  has  been  found  impossible  to  preserve  each  owner's 
grain  separate,  and  this  has  given  rise  to  a  system  of  inspection  and 
grading,  by  which  the  grain  of  different  owners  is  mixed,  and  re- 
ceipts issued  for  the  number  of  bushels  which  are  negotiable,  and 
redeemable  in  like  kind,  upon  demand.     This  mode  of  conducting 
the  business  was  inaugurated  more  than  twenty  years  ago,  and  has 
grown  to  immense  proportions.     The  railways  have  found  it  im- 
practicable to  owTi  such  elevators,  and  public  policy  forbids  the 
transaction  of  such  business  by  the  carrier;    the  ownership  has, 
therefore,  been  by  private  individuals,  who  have  embarked  their 


MUNN    V.    ILLINOIS.  747 

capital  and  devoted  their  industry  to  such  business  as  a  private 
pursuit." 

In  this  connection  it  must  also  be  borne  in  muid  that,  although 
m  1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this 
particular  business,  and  owned  by  about  thirty  persons,  nine 
business  firms  controlled  them,  and  that  the  prices  charged  and 
received  for  storage  were  such  "  as  have  been  from  year  to  year 
agreed  upon  and  established  by  the  different  elevators  or  ware- 
houses in  the  city  of  Chicago,  and  which  rates  have  been  annually 
published  in  one  or  more  newspapers  printed  in  said  city,  in  the 
month  of  January  in  each  year,  as  the  established  rates  for  the  year 
then  next  ensuing  such  pubhcation."  Thus  it  is  apparent  that  all 
theelevating  facilities  through  which  these  vast  productions  "  of 
seven  or  eight  great  States  of  the  West  "  must  pass  on  the  way  "  to 
four  or  five  of  the  States  on  the  sea-shore  "  may  be  a  ''  virtual  " 
nionopoh'. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the  com- 
mon carrier,  or  the  miller,  or  the  ferrjTxian,  or  the  innkeeper,  or  the 
wharfinger,  or  the  baker,  or  the  cartman,  or  the  hackney-coach- 
man, pursues  a  public  emplojTnent  and  exercises  "  a  sort  of  public 
office,"  these  plaintiffs  in  error  do  not.  .  .  .  Certainly,  if  any 
business  can  be  clothed  "  with  a  public  interest,  and  cease  to  be 
j  iiris  privati  onlv.^^  thisjiasbeen.  It  mav  not  be  ma  rip  so  byT^p 
operation  of  the  constitution  of  Illinois  or  this  stntnfo  but  it  is  liy 
thg,iaete. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some 
reason,  the  people  of  Illinois,  when  the}'  revised  their  constitution 
in  1870,  saw  fit  to  make  it  the  duty  of  the  general  assembly  to  pass 
laws  "  for  the  protection  of  producers,  shippers,  and  receivers  of 
grain  and  produce,"  art.  13,  sect.  7;  and  by  sect.  5  of  the  same 
article,  to  require  all  railroad  companies  receiving  and  transporting 
grain  in  bulk  or  otherwise  to  deliver  the  same  at  any  elevator  to 
which  it  might  be  consigned,  that  could  be  reached  by  any  track 
that  was  or  could  be  used  by  such  company,  and  that  all  railroad 
companies  should  permit  connections  to  be  made  with  their  tracks, 
so  that  any  public  warehouse,  &c.,  might  be  reached  by  the  cars 
on  their  railroads.  This  indicates  very  clearly  that  during  the 
twenty  years  in  which  this  peculiar  business  had  bepn  oggiin^ir.g  \f^ 
present  "  unmense  proportions,"  something  had  occurred  which 
led  the  whole  body  of  the  people  to  suppose  that  remediessuch  as 
are  usually  employed  to  prevent  abuses  by  virtual  monopolies 
might  not   be  inappropriate  here.      For"  our  purposes  we  must  ~ 


748      THE   FOURTEENTH   AMENDMENT  AND   PUBLIC   CALLINGS. 

assume  that,  if  a  state  of  facts  could  exist  that  would  justify  such 
legislation,  it  actually  did  exist  when  the  statute  now  under  con- 
sideration was  passed.     For  us  the  question  is  one  of  power,  not  of 
expediency.      If  no  state  of  circumstances  could  exist  to  justify 
such  a  statute,  then  we  may  declare  this  one  void,  because  in  excess 
of  the  legislative  power  of  the  State.      But  if  it  could,  we  must 
presume  it  did.     Of  the  propriety  of  legislative  interference  within 
the  scope  of  legislative  power,  the  legislature  is  the  exclusive  judge. 
Neither  is  it  a  matter  of  any  moment  that  no  precedent  can  be 
found  for  a  statute  precisely  like  this.      It  is  conceded  that  the 
business  is  one  of  recent  origin,  that  its  growth  has  been  rapid,  and 
that  it  is  already  of  great  importance.     And  it  must  also  be  con- 
ceded that  it  is  a  business  in  which  the  whole  public  has  a  direct 
and  positive  interest.     It  presents,  therefore,  a  case  for  the  appli- 
cation of  a  long-known  and  well-established  principle  in  social 
science,  and  this  statute  simply  extends  the  law  so  as  to  meet  this 
new  development  of  commercial  progress.     There  is  no  attempt  to 
compel  these  owners  to  grant  the  public  an  interest  in  their  prop- 
erty, l)ut  to  declare  their  obligations,  if  they  use  it  in  this  partic- 
ular manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built 
their  warehouses  and  established  their  business  before  the  regula- 
tions complained  of  were  adopted.  What  they  did  was  from  the_ 
beginning  subject  to  the  power  of  the  bodv  politic  to  require  thejii 
to  'conTorm  to  such  regulations  as  might  be  e^tfll^lishpfi  by  the 
proper  authorities  lor  tne  comrnongood.  They  entered  upon  their 
business  and  provided  tnemselves  with  the  means  to  carry  it  on 
subject  to  this  condition.  If  jhiey  did  not  wish  to  submit  them- 
selves to  such  interference,  theyshould  not  have  clothed  the  public 
with  an  interest  in  their  concerns.  The  same  principle  applies  to 
them  that  does  to  the'proprietor  of  a  hackney-carriage,  and  as  to 
him  it  has  never  been  supposed  that  he  was  exempt  from  regulating 
statutes  or  ordinances  because  he  had  purchased  his  horses  and 
carriage  and  established  his  business  before  the  statute  or  the  ordi- 
nance was  adopted. 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  though  it  be  clothed  with 
a  public  interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a 
legislative  question. 

As  has  already  been  shown,  the  practice  has  been  otherwise. 
In  countries  where  the  common  law  prevails,  it  has  been  customary 
from  time  immemorial  for  the  legislature  to  declare  what  shall  be  a 


MUNN   V.    ILLINOIS.  749 

reasonable  compensation  under  such  circumstances,  or,  perhaps 
more  properly  speaking,  to  fix  a  maximum  beyond  which  any 
charge  made  would  be  unreasonable.  Undoubtedly,  in  mere  pri- 
vate contracts,  relating  to  matters  in  which  the  public  has  no  in- 
terest, what  is  reasonable  must  be  ascertained  judicially.  But 
this  is  because  the  legislature  has  no  control  over  such  a  contract. 
So,  too,  in  matters  which  do  affect  the  public  interest,  and  as  to 
which  legislative  control  may  be  exercised,  if  there  are  no  statutory 
regulations  upon  the  subject,  the  courts  must  determine  what  is 
reasonable.  The  controlling  fact  is  the  power  to  regulate  at  all. 
If  that  exists,  the  right  to  establish  the  maximum  of  charge,  as  one 
ot_the  means  ot  regulation,  is  implied.  In  fact,  the  common-law 
rule,  which  requires  the  charge  to  be  reasonable,  is  itself  a  regulation 
as  to  price.  Without  it  the  o^vner  could  make  his  rates  at  will,  and 
compel  the  public  to  yield  to  his  terms,  or  forego  the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may  be 
changed  by  statute.  A  person  has  no  property,  no  vested  interest, 
in  any  rule  of  the  common  law.  That  is  only  one  of  the  forms  of 
municipal  law,  and  is  no  more  sacred  than  any  other.  Rights  of 
property  which  have  been  created  by  the  common  law  cannot  be 
taken  away  without  due  process;  but  the  law  itself,  as  a  rule  of 
conduct,  may  be  changed  at  the  will,  or  even  at  the  whim,  of  the 
legislature,  unless  prevented  by  constitutional  limitations.  Indeed 
the  great  office  of  statutes  is  to  remedy  defects  in  the  common  law 
as  they  are  developed,  and  to  adapt  it  to  the  changes  of  time  and 
circumstances.  To  limit  the  rate  of  charge  for  services  rendered 
in  a  public  employment,  or  for  the  use  of  property  in  which  the 
public  has  an  interest,  is  only  changing  a  regulation  which  existed 
before.  It  establishes  no  new  principle  in  the  law,  but  only  gives  a 
new  effect  to  an  old  one. 

We  know  that  this  is  a  power  which  may  be  abused;  but  that  is 
no  argument  against  its  existence.  For  protection  against  abuses 
by  legislatures  the  people  must  resort  to  the  polls,  not  to  the  courts. 

After  what  has  already  been  said,  it  is  unnecessary  to  refer  at 
length  to  the  effect  of  the  other  provision  of  the  Fourteenth  Amend- 
ment which  is  relied  upon,  viz.,  that  no  State  shall  "  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws." 
Certainly,  it  cannot  be  claimed  that  this  prevents  the  State  from 
regulating  the  fares  of  hackmen  or  the  charges  of  draymen  in 
Chicago,  unless  it  does  the  same  thing  in  every  other  place  within 
its  jurisdiction.  But,  as  has  been  seen,  the  power  to  regulate  the 
business  of  warehouses  depends  upon  the  same  principle  as  the 


750      THE    FOURTEENTH    AMENDMENT   AND    PUBLIC    CALLINGS. 

power  to  regulate  liackmen  and  ^Iraymon.  iind.  wlint  cannot  be 
rFonp  \nih(\  pne  casein  thJs  particuLar  cannot  be  done  in  the  other. 
"Wecome  now  to  consider  tlie  effect  upon  tins  statute  ot  the  power 
of  Congress  to  regulate  commerce. 

It  was  very  properly  said  in  the  case  of  the  State  Tax  on  Railway 
Gross  Receipts,  15  Wall.  293,  that ''  it  is  not  everything  that  affects 
commerce  that  amounts  to  a  regulation  of  it,  within  the  meaning 
of  the  Constitution."  The  warehouses  of  these  plaintiffs  in  error 
are  situated  and  their  business  carried  on  exclusively  within  the 
limits  of  the  State  of  Illinois.  They  are  used  as  instruments  by 
those  engaged  in  State  as  well  as  those  engaged  in  inter-state  com- 
merce, but  they  are  no  more  necessarily  a  part  of  commerce  itself 
than  the  dray  or  the  cart  by  which,  but  for  them,  grain  would  be 
transferred  from  one  railroad  station  to  another.  Incidentally 
they  may  become  connected  with  inter-state  commerce,  but  not 
necessarily  so.  Their  regulation  is  a  thing  of  domestic  concern, 
and,  certainly,  until  Congress  acts  in  reference  to  their  inter-state 
relations,  the  State  may  exercise  all  the  powers  of  government  over 
them,  even  though  in  so  doing  it  may  indirectly  operate  upon 
commerce  outside  its  immediate  jurisdiction.  We  do  not  say 
that  a  case  may  not  arise  in  which  it  will  be  found  that  a  State, 
under  the  form  of  regulating  its  own  affairs,  has  encroached  upon 
the  exclusive  domain  of  Congress  in  respect  to  inter-state  com- 
merce, but  we  do  say  that,  upon  the  facts  as  they  are  represented 
to  us  in  this  record,  that  has  not  been  done. 

The  remaining  objection,  to  wit,  that  the  statute  in  its  present 
form  is  repugnant  to  sect.  9,  art.  1,  of  the  Constitution  of  the 
United  States,  because  it  gives  preference  to  the  ports  of  one  State 
over  those  of  another,  may  be  disposed  of  by  the  single  remark  that 
this  provision  operates  only  as  a  limitation  of  the  powers  of  Con- 
gress, and  in  no  respect  affects  the  States  in  the  regulation  of  their 
domestic  affairs.  .  .  . 

Judgment  affirmed.^ 

Field  and  Strong,  JJ.,  dissented.  .  .  . 

1  See  C,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota,  134  U.  S.  418  (1890);  Budd  v. 
New  York,  143  U.  S.  517  (1892);  Brass  v.  North  Dakota,  ex  rel.  Stoeser,  153 
U.  S.  391  (1894);  Reagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362  (1894).  —  Ed. 


SMYTH   V.   AMES.  751 

SMYTH  V.  AMES. 

Supreme  Court  of  the  United  States.     1898. 

[169  United  States,  466.]  i 

Appeals  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  Nebraska. 

In  the  United  States  Circuit  Court  for  the  District  of  Nebraska, 
on  July  28,  1893,  Ames  and  others,  all  being  citizens  of  Massa- 
chusetts or  subjects  of  Great  Britain,  and  being  also  stockholders 
in  certain  railroad  companies  incorporated  in  Nebraska  or  in 
neighboring  states,  brought  three  suits,  in  behalf  of  themselves 
and  other  stockholders,  against  those  companies  and  against  certain 
citizens  of  Nebraska  who  held  state  offices,  praying  injunctions 
against  publishing  or  enforcing  a  schedule  of  the  rates  to  be  charged 
for  transportation  of  freight  from  one  point  to  another  in  Nebraska, 
whereby  the  rates  would  be  reduced  to  those  prescribed  by  the 
Nebraska  "  Act  to  regulate  railroads,  to  classify  freights,  to  fix 
reasonable  maxilUom  rates  to  be  charged  for  the  transportation  of 
freight  upon  each  of  the  railroads  in  the  State  of  Nebraska,  and  to 
provide  penalties  for  the  violation  of  this  act,"  approved  April  12, 
1893  (Acts,  1893,  c.  24;  Comp.  Stat.  1893,  c.  72,  art.  12).  On 
hearing,  injunctions  were^lecreed  as  pra^^ed;  and  apppals  wpp^ 
takenjgjji£  Supreme  r'oiir,t.of  the  United  States. 

J.  L.  Webster,  A.  S.  Churchill,  Attorney  General  of  Nebraska, 
and  W.  J.  Bryan,  for  appellants;  and  J.  M.  Woolworth  and  J.  C. 
Carter,  contra. 

Harlan,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

In  these  cases  the  plaintiffs,  stockholders  in  the  corporations 
named,  ask  a  decree  enjoining  the  enforcement  of  certain  rates  for 
transportation  upon  the  ground  that  the  statute  prescribing  them 
is  repugnant  to  the  Constitution  of  the  United  States.  .  .  . 

An  important  question  is  presented  that  relates  only  to  the 
Union  Pacific  Company.  That  company  is  a  corporation  formed 
by  the  consolidation  of  several  companies  under  the  authority  of 
acts  of  Congress,  one  of  the  constituent  companies  being  the  Union 
Pacific  Railroad  Company  incorporated  by  the  act  of  July  1,  1862, 
c.  120,  12  Stat.  489.  United  States  v.  Union  Pacific  Railway, 
160 U.S.  1,6.  ..  . 

It  cannot  be  doubted  that  the  making  of  rates  for  transportation 
by  railroad  corporations  along  public  highways,  between  points 

1  The  statement  has  not  been  reprinted.  —  Ed. 


752      THE    FOURTEENTH   AMENDMENT   AND    PUBLIC    CALLINGS. 

wholly  within  the  limits  of  a  State,  is  a  subject  primarily  within 
the  control  of  that  State.  .  .  .  Until  Congress,  in  the  exercise 
either  of  the  power  specifically  reserved  by  the  eighteenth  section 
of  the  act  of  1862  or  its  power  under  the  general  reservation  made 
of  authority  to  add  to,  alter,  amend  or  repeal  that  act,  prescribes 
rates  to  be  charged  by  the  railroad  company,  it  remains  with  the 
States  through  which  the  road  passes  to  fix  rates  for  transportation 
beginning  and  ending  within  their  respective  limits. 

We  are  now  to  inquire  whether  the  Nebraska  statute  is  repug- 
nant to  the  Constitution  of  the  United  States. 

By  the  Fourteenth  Amendment  it  is  provided  that  no  State  shall 
deprive  any  person  of  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws.  That  corporations  are  persons  ^vithin  the  meaning  of 
this  Amendment  is  now  settled.  Santa  Clara  County  v.  Southern 
Pacific  Railroad,  118  U.  S.  394,  396;  Charlotte,  Columbia  & 
Augusta  Railroad  v.  Gibbes,  142  U.  S.  386,  391;  Gulf,  Colorado  & 
Santa  Fe  Railway  v.  Ellis,  165  U.  S.  150,  154.  What  amounts  to 
deprivation  of  property  without  due  process  of  law  or  what  is  a 
denial  of  the  equal  protection  of  the  laws  is  often  difficult  to  deter- 
mine, esi^ecially  where  the  question  relates  to  the  property  of  a 
quasi  public  corporation  and  the  extent  to  which  it  may  be  sub- 
jected to  public  control.^  .  .  . 

In  view  of  the  adjudications  these  princii)les  must  be  regarded  as 
settled. 
I  1.  A  railroad  corporation  is  a  person  within  the  meaning  of  the 
Fourteenth  Amendment  declaring  that  no  State  shall  deprive  any 
person  of  property  without  due  process  of  law,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws. 

2.  A  state  enactment,  or  regulations  made  under  the  authority 
of  a  state  enactment,  establishing  rates  for  the  transportation  of 
persons  or  property  by  railroad  that  will  not  admit  of  the  carrier 

1  Here  were  cited,  with  occasional  quotation,  Railroad  Commission  Cases, 
116  U.  S.  307,  325,  331  (1886);  Dow  v.  Beidelman,  125  U.  S.  680,  689  (1888); 
Georgia  Railroad  &  Banking  Co.  v.  Smith,  128  U.  S.  174,  179  (1888);  C,  M.  & 
St.  P.  Ry  Co.  V.  Minnesota,  134  U.  S.  418,  458  (1890);  C.  &  G.  T.  Ry.  Co.  v. 
Wellman,  143  U.  S.  339,  344  (1892);  Budd  v.  New  York,  143  U.  S.  517,  547 
(1892);  Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154  U.  S.  362,  399  (1894); 
St.  Louis  &  San  Francisco  Ry.  Co.  v.  Gill,  156  U.  S.  649,  657  (1895);  Covington 
&  Lexington  Turnpike  Road  Co.  v.  Sandford,  164  U.  S.  578,  584,  594-595,  597 
(1896);  C,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S.  226,  241  (1897);  and  Louis- 
ville &  NashviUe  R.  Co.  v.  Central  Stock  Yards  Co.,  212  U.  S.  132  (1909).  — 
Ed. 


SMYTH    V.    AMES.  753 

I  earning  such  compensation  as  under  all  the  circumstances  is  just  to 
it  and  to  the  public,  would  deprive  such  carrier  of  its  property 
without  due  process  of  law  and  deny  to  it  the  equal  protection  of 
the  laws,  and  would  therefore  be  repugnant  to  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States. 

3.  While  rates  for  the  transportation  of  persons  and  property 
withm  the  limits  of  a  State  are  primarily  for  its  determination,  the 
question  whether  they  are  so  unreasonably  low  as  to  deprive  the 
carrier  of  its  property  without  such  compensation  as  the  Constitu- 
tion secures,  and  therefore  without  due  process  of  law,  cannot  be  so 
conclusively  determined  by  the  legislature  of  the  State  or  by  regu- 
lations adopted  under  its  authority,  that  the  matter  may  not 
become  the  subject  of  judicial  inquiry. 

The  cases  before  us  directly  present  the  important  question  last 
stated. 

Before  entering  upon  its  examination,  it  may  be  observed  that 
the  grant  to  the  legislature  in  the  constitution  of  Nebraska  of  the 
power  to  establish  maximum  rates  for  the  transportation  of  pas- 
sengers and  freight  on  railroads  in  that  State  has  reference  to 
"  reasonable  "  maximum  rates.  These  words  strongly  imply  that 
it  was  not  intended  to  give  a  power  to  fix  maximum  rates  without 
regard  to  their  reasonableness.  Be  this  as  it  may,  it  cannot  be 
admitted  that  the  power  granted  may  be  exerted  in  derogation  of 
rights  secured  by  the  Constitution  of  the  United  States,  or  that  the 
judiciary  may  not,  when  its  jurisdiction  is  properly  invoked,  protect 
those  rights.  .  .  . 

We  turn  now  to  the  evidence  in  the  voluminous  record  before 
us  for  the  purpose  of  ascertaining  iijietlier  —  looking  at  the  cases 
in  the  light  of  the  facts  as  they  existed  when  the  decrees  were 
rendered  —  the  Xj^hrn^kn  stntnto.  if  enforced,  would,  bv  its  neces- 
sary  operation^JiaA'e  deprived  the  companies,  whose  stockholders 
and  bondholders  here  complain,  of  the  right  to  obtain  just  com- 
pensation for  the  services  rendererl  by  thf^TT),-  ■  .  . 

The  reasonableness  or  unreasonableness  of  rates  prescribed  by  a 
State  for  the  transportation  of  persons  and  property  wholly  within 
its  limits  must  be  determined  without  reference  to  the  interstate 
•business  done  by  the  carrier,  or  to  the  profits  derived  from  it.  .  .  . 
The  argument  that  a  railroad  line  is  an  entirety;  that  its  income 
goes  into,  and  its  expenses  are  provided  for,  out  of  a  common 
fund;  and  that  its  capitalization  is  on  its  entire  line,  within  and 
^^'ithout  the  State,  can  have  no  application  where  the  State  is 
without  authority  over  rates  on  the  entire  line,  and  can  only  deal 


754      THE    FOURTEENTH    AMENDMENT   AND    I'LBLIC    CALLINGS. 

with  local  rates  and  make  such  regulations  as  are  necessary  to  give 
just  compensation  on  local  business.  .  .  . 

The  plaintiffs  contended  that  a  railroad  company  is  entitled  to 
exact  such  charges  for  transportation  as  will  enable  it,  at  all  times, 
not  only  to  pay  operating  expenses,  but  also  to  meet  the  interest 
regularly  accruing  upon  all  its  outstanding  obligations,  and  justify  a 
dividend  upon  all  its  stock;  and  that  to  prohibit  it  from  main- 
taining rates  or  charges  for  transportation  adequate  to  all  those 
ends  will  deprive  it  of  its  property  without  due  process  of  law,  and 
deny  to  it  the  equal  protection  of  the  laws.  .  .  . 

The  broad  proposition  advanced  by  counsel  involves  some  mis- 
conception of  the  relations  between  the  public  and  a  railroad 
corporation.  It  is  unsound  in  that  it  practically  excludes  from  con- 
sideration the  fair  value  of  the  property  used,  omits  altogether  any 
consideration  of  the  right  of  the  public  to  be  exempt  from  unreason- 
able exactions,  and  makes  the  interests  of  the  corporation  main- 
taining a  public  highway  the  sole  test  in  determining  whether  the 
rates  established  by  or  for  it  are  such  as  may  be  rightfully  pre- 
scribed as  between  it  and  the  public.  A  railroad  is  a  public  highway, 
and  none  the  less  so  because  constructed  and  maintained  through 
thellgency  ofrrcorpm-ation  derivhij;  itst'.\-isr(MK-"p  -•^ml  prm-crj;;  from 
the^^tttate.  Such  a  corporation  was  created  for  public  pun)oscs. 
It  performs  a  function  of  Ihc  tStale!  Its  authority  to  exercise  the 
rigFit  of  emiheUt  dotlllliilTuicl  to  charge  tolls  was  given  primarily 
for  the  benefit  of  the  public.  It  is  under  govcrnmental_£Qiitrol 
though  such  control  must  be  exercised  with  due  regard  to.  the 
conTstitutionai  guarantees  for  the  protection  of  its  property.  Olcott 
V.  The  Supervisors,  16  Wall.  078,  694;  Sinking  Fund  Cases,  99  U.  S. 
700,  719;  Cherokee  Nation  v.  Southern  Kansas  Railway,  135  U.  S. 
.  641,  657.  .  .  . 

If  a  railroad  corporation  has  bonded  its  property  for  an  amount 
that  exceeds  its  fair  value,  or  if  its  capitalization  is  largely  fictitious, 
it  msiy  not  impose  upon  the  public  the  burden  of  such  increased 
rates,  as  may  be  required  for  the  purpose  of  realizing  profits  upon 
such  excessive  valuation  or  fictitious  capitalization;  and  theap;^ 
parentvalue  of  the  proDeriy-aad-jj:anchises  used_by_the  corpora.- 
tion,  as  represented  by  its  stocks,  bonds  ancToblJ/yRti on s,  is  not' 
alone  to  be  considered  when  determinmg  the  rates  that  may  be 
reasonably  charged.^  .  .  .  ~  ~" 

1  Here  was  quoted  Covington  &  Lexington  Turnpike  Road  Co.  v.  Sandford, 
164  U.  S.  578,  596-597  (1896).  —  Ed. 


SMYTH    V.    AMES.  755 

The  basis  of  all  calculations  as  to  the  reasonableness  of  rates  to  be 
charged  by  a  corporation  mamtaining  a  highway  under  legislative 
sanction  must  be  the  fair  value  of  the  property  beuig  used  by  it  for 
the  convenience  ot  tlie  public.  And  in  order  to  a.scerta.in  that  va.lnp^ 
the  original  cost  of  construction,  the  amount  expended  in  perma- 
nent improvements,  the  amount  and  market  value  of  its  bonds  and 
stock,  the  present  as  compared  with  the  original  cost  of  construc- 
tion, the  probable  earning  capacity  of  the  property  under  particular 
rates  prescribed  by  statute,  and  the  sum  required  to  meet  operat- 
ing expenses,  are  all  matters  for  consideration,  and  are  to  be  given 
such  weight  as  may  be  just  and  right  in  each  case.  We  do  not  say 
that  there  may  not  be  other  matters  to  be  regarded  in  estimating 
the  value  of  the  property.  \Vliat  the  company  is  entitled  to  ask  is  a 
fair  return  upon  the  valueoTthat  which  it  employs  for  the  public 
convenience.  On  the  other  liand,  what  the  public  is  entitled  to 
demand  is  that  no  more  be  exacfed  from  it  ior  theUse  of  a  public 
highway  than  the  services  rendered  by  it  are  reasonably  worth. 
But  even  upon  this  basis,  and  determining'the  probable  effect  of 
the  act  of  1893  by  ascertaining  what  could  have  been  its  effect  if  it 
had  been  in  operation  during  the  three  years  immediately  preced- 
ing its  passage,  we  perceive  no  ground  on  the  record  for  reversing 
the  decree  of  the  Circuit  Court.  On  the  contrary,  we  are  of  opinion 
that  ^j_l2  TlftSti  pf  ^^^f"  fnmp.inif^v:  jg  questiou  there  would  have  been, 
under  such  rates  as  were  established  by  the  act  of  1893^  an  actual 
loss  in  each  of  the  years  ending  June  30,  1891,  1892  and  1893;  and" 
that,  in  the  exceptional  cases  above  stated,  when  two  of  the  com- 
panies would  have  earned  something  above  operating  expeases,  in 
particular  years,  the  receipts  or  gains,  above  operating  expenses, 
would  have  been  too  small  to  affect  the  general  conclusion  that  the 
act,  if  enforced,  would  have  deprived  each  of  the  railroad  compnniRi^ 
involved  in  these  suits  of  the  just  compensation  secured  to  them  by 
the  Constitution.  Under  tlie  evidence  there  is  no  ground  for  say- 
ing  that  the  operating  expenses  of  any  of  the  companies  were 
greater  than  necessary.  .  .  . 

The  decree  in  each  case  must  be  affirmed } 

Fuller,  C.  J.,  took  no  part  in  the  consideration  or  decision  of 
these  cases. 

McKenna,  J.,  was  not  a  member  of  the  court  when  they  were 
argued  and  submitted,  and  took  no  part  in  their  decision. 

1  See  L.  S.  &  M.  S.  Ry.  Co.  v.  Smith,  173  U.  S.  684  (1899);  C,  M.  &  St.  P. 
Ry.  Co.  V.  Tompkins,  176  U.  S.  167  (1900);  Ex  parte  Young,  209  U.  S.  123 
(1908);  Missouri  Pacific  Ry.  Co.  v.  Nebraska,  217  U.  S.  196  (1910);  Missouri 
Pacific  Ry.  Co.  v.  Tucker,  230  U.  S.  340  (1913).  —  Ed. 


756      THE   FOURTEENTH   AMENDMENT  AND   PUBLIC    CALLINGS.  ' 

GERMAN  ALLIANCE  INSURANCE  CO.   v.   LEWIS, 

Superintendent  of  Insurance  of  Kansas. 

Supreme  Court  of  the  United  States.     1914. 
[233  United  Stales,  389.]  ^ 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  Kansas. 

In  the  Circuit  Court  of  the  United  States  suit  was  brought  to 
restrain  the  Kaasas  superintendent  of  insurance  from  enforcing  tlie 
Kansas  statute  (Session  Laws,  1909,  c.  152)  which  required  fire 
insurance  companies  to  file  schedules  of  rates,  authorized  the 
superintendent  of  insurance  to  direct  companies  to  publish  a 
higher  or  a  lower  reasonaljle  rate,  prohibited  discriminations  by  the 
companies,  punished  infractions  of  the  act  l)y  revoking  licenses  and 
imposing  fine  or  imprisonment,  and  exempted  farmers'  mutual 
insurance  companies  organized  under  the  laws  of  the  State  and 
insuring  only  farm  property.  The  bill  alleged,  among  other  things, 
that  it  was  brought  in  behalf  of  the  complainant  and  all  other 
companies  or  corporations  similarly  placed,  that  the  jurisdictional 
amount  was  uivolved,  that  the  controversy  arose  under  the  Con- 
stitution of  the  United  States,  that  the  complainant  was  incorpo- 
rated in  New  York  and  was  doing  business  in  Kansas  under  license 
before  the  passing  of  the  statute,  that  fire  insurance  is  a  private 
business,  that  establishing  the  basis  rate  is  a  matter  of  technical 
deduction  from  the  experience  of  all  fire  insurance  companies,  that 
inspectors  must  report  upon  individual  risks,  that  the  respondent 
is  not  possessed  of  the  necessary  training,  that  the  complainant 
filed,  under  protest,  its  schedule  of  rates,  that  the  respondent 
made  a  deduction  of  12  %  in  these  rates,  that  under  protest  the 
complainant  reduced  its  rates  accordingly,  reserving  its  rights, 
that  the  reduction  results  in  rates  much  less  than  the  cost  of  carry- 
mg  the  risks,  and  that  the  respondent  threatens  to  make  further 
reductions  and  to  revoke  the  license  of  any  company  violating  the 
act  and  to  inflict  upon  the  officers  the  prescribed  penalties  to  the 
irreparable  damage  of  such  companies  and  of  the  complainant. 
A  general  demurrer  to  the  bill  was  sustained,  and  the  bill  dismissed; 
and  an  appeal  was  taken  to  the  Supreme  Court  of  the  United  States. 
T.  Bates,  J.  G.  Johnson,  and  S.  Edgerton,  for  appellant;  and 
J.  S.  Dawson,  Attorney  General  of  Kansas,  and  others,  contra. 

1  The  statement  has  not  been  reprinted.  —  Ed. 


GERMAN    ALLIANCE    INSURANCE    CO.    V.    LEWIS.  757 

McKenna,  J.,  delivered  the  opinion  of  the  court. 
The  specific  error  complained  of  is  t^  refnstil  of  th^      ,_^  court 
to  hold  that  the  act  ...  is  unconstitutional  .  .  .  as  offending 
thp  d^p  profpss  clnnsp  of  thp^'^'iT-tPPnfh  ^piendment.  .  . 

The  basic  contention  is  that  the  business  of  insurance  is  a  natural 
right,  receiving  no  privilege  from  the  State,  ,is  voluntarily  entered 
into,  cannot  be  compelled  nor  can  any  of  its  exercises  be  compelled; 
that  it  concerns  personal  contracts  of  indemnity  against  certain 
contingencies  merely.  Whether  such  contracts  shall  be  made  at 
all,  it  is  contended,  is  a  matter  of  private  negotiation  and  agree- 
ment, and  necessarily  there  must  be  freedom  in  fLxing  their  terms. 
.  ,  .  ]Many  elements,  it  is  urged,  determine  the  extending  or 
rejection  of  insurance;  the  hazards  are  relative  and  depend  upon 
many  circumstances  upon  which  there  may  be  different  judgments, 
and  there  are  personal  considerations  as  well  —  "  moral  hazards," 
as  they  are  called. 

It  is  not  clear  to  what  extent  some  of  these  circumstances  are 
urged  as  affecting  the  power  of  regulation  in  the  State.  It  would 
seem  to  be  urged  that  each  risk  is  individual  and  no  rule  of  rates 
can  be  formed  or  applied.  The  bill  asserts  the  contrary.  It  in 
effect  admits  that  there  can  be  standards  and  classification  of 
risks,  determined  by  the  law  of  averages.  Indeed,  it  is  a  matter 
of  common  knowledge  that  rates  are  fixed  and  accommodated  to 
those  standards  and  classification  in  pre-arranged  schedules,  and, 
granted  the  rates  may  be  varied  in  particular  instances,  they  are 
sufficiently  definite  and  applicable  as  a  general  and  practically 
constant  rule.  .  .  .  We  may  put  aside,  therefore,  all  merely 
adventitious  considerations  and  come  to  the  bare  and  essential  one, 
whether  a  contract  of  fire  insurance  is  private  and  as  such  has  con- 
stitutional  immunitv  from  regulation.  Or,  to  state  it  differently 
and  to  express  an  antithetical  proposition,  is  the  business  of  in- 
surance  so  far  affected  with  a  public  interest  as  to  justify  legislative 
regulation  of  its  rates  V  And  we  mean  a  broad  nnri  rlefinito  publi-e- 
interest.  in  some  aegree  the  public  interest  is  concerned  in  every 
transaction  between  men,  the  sum  of  the  transactions  constituting 
the  activities  of  life.  But  there  is  something  more  special  than 
this,  something  of  more  definite  consequence,  which  makes  the 
public  interest  that  justifies  regulatory  legislation.  We  can  best 
explain  by  examples.  The  transportation  of  property  —  business 
of  common  carriers  —  is  obviously  of  public  concern  and  its  regula- 
tion is  an  accepted  governmental  power.  The  transmission  of 
intelligence  is  of  cognate  character.      There  are  other  utihties 


758      THE    fOURTEENTH   AMENDMENT   AND   PUBLIC   CALLINGS. 

which  are  denominated  public,  such  as  the  furnishing  of  water  and 
Ught,  including  in  the  latter  gas  and  electricity.  We  do  not  hesi- 
tate at  their  regulation  nor  at  the  fixing  of  the  prices  which  may  be 
charged  for  their  service.  The  basis  of  the  ready  concession  of  the 
power  of  regulation  is  the  public  interest.  This  is  not  denied,  but 
its  application  to  insurance  is  so  far  denied  as  not  to  extend  to  the 
fixing  of  rates.  It  is  said,  the  State  has  no  power  to  fix  the  rates 
charged  to  the  public  by  either  corporatioiLs  or  individuals  engaged 
in  a  private  business,  and  the  "  test  of  whether  the  use  is  pubhc  or 
not  is  whether  a  public  trust  is  imposed  upon  the  property  and 
whether  the  public  has  a  legal  right  to  the  use  which  cannot  be 
denied  " ;  or,  as  we  have  said,  quoting  counsel,  "  Where  the  right  to 
demand  and  receive  service  does  not  exist  in  the  public,  the  cor- 
relative right  of  regulation  as  to  rates  and  charges  does  not  exist." 
Cases  are  cited  which,  it  must  be  admitted,  support  the  contention. 
The  distinction  is  artificial.  It  is,  indeed,  but  the  assertion  that 
the  cited  examples  embrace  all  cases  of  public  interest.  The  com- 
plamant  explicitly  so  contends,  urging  that  the  test  it  applies 
excludes  the  idea  that  there  can  be  a  public  interest  which  gives  the 
power  of  regulation  as  distinct  from  a  public  use  which,  necessarily, 
it  is  contended,  can  only  apply  to  property,  not  to  personal  con- 
tracts. The  distinction,  we  think,  has  no  basis  in  principle 
(Noble  State  Bank  v.  Haskell,  219  U.  S.  104),  nor  has  the  other 
contention  that  the  service  which  cannot  be  demanded  cannot  be 

regulated.  .  .  . 

The  eases  need  no  explanatory  or  fortifying  comment.  They 
demonstrate  that  a  business,  by  circumstances  and  its  nature,  may 
rise  from  private  to  be  of  public  concern  and  be  subject,  in  coase- 
quence,  to  governmental  regulation.  And  they  demonstrate,  to 
apply  the  language  of  Judge  Andrews  in  People  v.  Budd  (117  X.  Y. 
1,  27),  that  the  attempts  made  to  place  the  right  of  public  regula- 
tion in  the  cases  m  which  it  has  been  exerted,  and  of  which  we  have 
given  examples,  upon  the  ground  of  special  privilege  conferred  by 
the  public  on  those  affected  cannot  bo  supported.  "  The  under- 
lying principle  is  that  business  of  ^-^rt-liin  H''^^''^  ^"^''^^-^  ^'^^'h  a  peculiar 
relation  to  thejuiblic  interests  that  there  is  suijerinduced  uponJt 
th^7i^do[^Si^Ii^2^^on. ' '  Is  theljusmess  oTinsurance  within 
thellrmciple  ?  It  vmilcrbe  a  bold  thing  to  say  that  the  principle 
is  fixed,  inelastic,  in  the  precedents  of  the  past  and  cannot  be  ap- 
plied though  modern  economic  conditions  may  make  necessary  or 
beneficial  its  application.  In  other  words,  to  say  that  government 
possessed  at  one  time  a  greater  power  to  recognize  the  public 


GERM.OJ   .\LLL^CE   INSURANCE   CO.    V.   LEWIS.  759 

interest  in  a  business  and  its  regulation  to  promote  the  general 
welfare  than  government  possesses  today.  We  proceed  then  to 
consider  whether  the  business  of  insurance  is  ^vdthin  the  principle. 

Aj'ontract  for  fire  insurance  is  one  for  indemnity  against  loss 
and  IS  personal.  The  achnission,  however,  does  not  take  us  iar  ni 
the  solutionol"  the  question  jjresented.  Its  personal  character 
certainly  does  not  of  itself  preclude  regulatioiTrTorlhere  are  manr 
exSinples  of  govermuentaljegulation  of  personal  contracts,  an^l  iii 
the  statutes  of  everv  Statp~in  tho  Ininn  ^Mpar;Mto»,]p,-)(.p  ..,„,]  ,.,,„_ 
trol  over  the  hiisinp>;.s  of  in..;iirf:|nP>.  oro  exercised,  varyintj;  in  details 
and_extenL_^  We  neetl  not  particularize  in  detail'  We  iTeecTTJTrty 
'SayUiat  there  was  quite  early  (in  IMassachusetts  1837,  New  York 
1853)  state  provision  for  what  is  known  as  the  unearned  premium 
funtl  or  reserve;  then  came  the  limitation  of  dividends,  the  pub- 
lishing of  accounts,  valued  policies,  standards  of  policies,  prescrib- 
ing investment,  requiring  deposits  in  money  or  bonds,  confining 
the  business  to  corporations,  jireventing  discrimination  in  rates, 
limitation  of  risks  and  other  regulations  equally  restrictive.  In 
other  words,  the  State  has  stepped  hi  and  imposed  conditions  upon 
the  companies,  restraining  the  absolute  liberty  which  businesses 
strictly  private  are  permitted  to  exercise. 

Th(Jf^o  rcpjnl.-itions  exhibit  it  to  he  the  conception  of  the  law- 
makintr  Ijodies  of  tlio  countrv  without  exception  that  the  business 
of  JusiirMnff.  ^.^  f,-|r  a<Yects  the  public  welfare  as  to  invoke  and  require 
pr(u-<>rnniPntMl  r(uriiin|i^^i  A  Conception  so  general  cannot  be 
without  cause.  The  universal  sense  of  a  people  camiot  be  acci- 
dental; its  persistence  saves  it  from  the  charge  of  unconsidered 
impulse,  and  its  estimate  of  insurance  certainly  has  substantial 
basis.  Accidental  fires  are  inevitable  and  the  extent  of  loss  very 
great.  The  effect  of  insurance  —  indeed,  it  has  been  said  to  be  its 
fundamental  object  —  is  to  distribute  the  loss  over  as  wide  an 
area  as  possible.  In  other  words,  the  loss  is  spread  over  the  coun- 
try, the  disaster  to  an  individual  is  shared  by  many,  the  disaster  to 
a  conmiunity  shared  by  other  communities;  great  catastrophes  are 
thereby  lessened,  and,  it  may  be,  repaired.  In  assimilation  of 
insurance  to  a  tax,  the  companies  have  i^een  said  to  be  the  mere 
machinery  bv  which  the  mevitaljle  losses  bv  hre  are  distributecrSb 
as  to  fall  as  lightly  as  possible  on  the  public  at  large,  the  body  of 
the  i^Mirecl.  not,  tiie  com^.-uues.  uavuig  the  tax.  Then  ethciencyT" 
therefore,  and  solvency  are  of  great  concern.  The  other  objects, 
direct  and  indirect,  of  insurance  we  need  not  mention.  Indeed, 
it  may  be  enough  to  say,  without  stating  other  effects  of  insm'ance, 


760      THE    FOURTEENTH   AMENDMENT   AND    PUBLIC    CALLINGS. 

that  a  lame  part  of  the  country's  wealth,  snhippt  to  unc(;riaiiiUL  of 
losstlirou^h  fire,  is  protected  1)V  insurance.      This  deinou:>iattes 
t_^interest  <>f  tlw>  piil)lic  in  it  and  we  need  not  dispute  with  the 
economists  that  this  is  the  result  of  the  "  sul)stitution  of  certain  for 
uncertain  loss  "  or  the  diffusion  of  positive  loss  over  a  large  group 
of  persons,  as  we  have  already  said  to  be  certainly  one  of  its  effects. 
We  can  see,  therefore,  how  it  has  come  to  be  considered  a  matter  of 
publTTcohcern  to  regulate  it.  and,  p;overnmental  insurance  has  its 
advocates  and  even  ovn.inples.     Contracts  of  insurance,  therefore, 
have  greater  public  conseciucnce  than  contracts  Ijetween  indivitluals 
to  do  or  not  to  do  a  particular  thing  whose  effect  stops  mth  the 
individuals.      We  may  say  in  passing  that  when  the  effect  goes 
])eyond  that,  there  are  many  examples  of  regulation.      Holden  v. 
Hardy,  169  U.  S.  366;    Griffith  v.  Connecticut,  218  U.  S.  563; 
Muller  V.  Oregon,  208  U.  S.  412;  Mutual  Loan  Co.  v.  Martell,  222 
U.  S.  225;    Schmidinger  t-.  Chicago,   226   U.  S.  578;    Chicago, 
Burlington  &  Quincy  R.  R.  Co.  i'.  McGuire,  219  U.  S.  549;  Noble 
State  Bank  v.  Haskell,  219  U.  S.  104. 

Complainant  feels  the  necessity  of  accounting  for  the  regulatory 
state  legislation  and  refers  it  to  the  exertion  of  the  police  power, 
but,  while  expressing  the  power  in  the  broad  language  of  the  cases, 
seeks  to  restrict  its  application.  Counsel  states  that  this  power 
may  be  exerted  to  "  pass  laws  whose  purpose  is  the  health,  safety, 
morals  and  the  general  welfare  of  the  people."  The  admission  is 
very  comprehensive.  What  makes  for_the  general  welfare  is 
necessarily  in  the  first  instance  a  matter  of  legislative  judgment 
and  a  judicial  review  of  such  judgment  is  limited.  .  .  . 

But  it  is  said  that  the  reasoning  of  the  npininn  hns  the  broad 
reach  o(  subjecting  to  regulation  every  act  of  human  pndpn.vnr  fl.gd 
tfie  price  of  everv^axticln  of  human  uog:  W^e  might,  %\athout  much 
concern,  leave  our  discussion  to  take  care  of  itself  against  such  mis- 
understanding or  deductions.  The  principle  we  apply  is  definite 
and  old  and  has,  as  we  havejointed  ni't,  illn^f-^tiripr  Pvn.mples. 
And  bofirbv  the  expression  of  the  principle  and  the  citation  of  the 
examples  we  have  tried  to  confine  our  decision  tothe  regulation  of 
tETEusiness  of  insurance,  it  havins_b££Qme  ''  clothed  ^\ith  aTpnblic 
interest,"  and  therefore  subject  "  to  be  controlled  by  the  public  for 
the  common  good."  ~  " 

If  there  may  be  controversy  as  to  the  business  having  such 
character,  there  can  be  no  controversy  as  to  what  follows  from  such 
character  if  it  be  established.  It  is  idle,  therefore,  to  debate 
whether  the  liberty  of  contract  guaranteed  by  the  Constitution  of 


GERMAN    ALLIANCE    INSURANCE    CO.    V.    LEWIS.  761 

the  United  States  is  more  intimately  involved  in  price  regulation 
than  in  the  other  forms  of  regulation  as  to  the  validity  of  which 
there  is  no  dispute.  The  order  of  their  enactment  certainly  cannot 
be  considered  an  element  in  their  legality.  It  would  be  very 
rudunentary  to  say  that  measures  of  government  are  determmed  by 
circumstances,  by  the  presence  or  imminence  of  conditions,  and  of 
the  legislative  judgment  of  the  means  or  the  policy  of  removing 
or  preventing  them.  The  power  to  regulate  interstate  commerce 
existed  for  a  centurv  before  the  Interstate  Commerce  Act  was 
passed,  and  the  Commission  constituted  by  it  was  not  given 
authority  to  fix  rates  until  some  years  afterwards.  ...  And  so 
with  the  regulations  of  the  business  of  insurance.  They  have 
proceeded  step  by  step,  differing  in  different  jurisdictions.  If  we 
are  brought  to  a  comparison  of  them  in  relation  to  the  power  of 
government,  how  can  it  be  said  that  fixing  the  price  of  insurance  is 
beyond  that  power  and  the  other  instances  of  regulation  are 

not  ?  .  .  .  ,  .  .        ^ 

We  may  venture  to  observe  that  the  price  of  insurance  is  not 
fixed  over  the  counters  of  the  companies  l)y  what  Adam  Smith  calls 
fl..T^i^^ihT^T£tlie  market.  I.ut  iormed  hi  llie  ^umiul.  uf  Hit  uudLi 
...f:^T^^r^^!:;^^rn\v.d  m  schedules  of  practicallv  controlling  con- 
rA.{^"  -:J2Hi_±:i:nirlif  ""^  ^"^  ^"-^"^'^^^^  ^^  powerless  to  oppose  and 
.■■,,i;:ir7j^^^X^  in  tbo  •^^sertion  tint  the  hiliinftaS-^Q^- 

-i:{i7;i;^c7i^rmo^^ 

s];;:;d:^jrrUtot7of  contract."  It  is  m  the  alternative  presented 
ofH^^^mg  the  rates  of  the  companies  or  refraining  from  insur- 
ance, business  necessity  impelling  if  not  compelling  it,  that  we  may 
discover  the  inducement  of  the  Kansas  statute,  and  the  problem 
presented  is  whether  the  legislature  could  regard  it  of  as  much 
moment  to  the  public  that  they  who  seek  insurance  should  no  more 
be  constrained  by  arbitrary  terms  than  they  who  seek  transporta- 
tion by  railroads,  steam  or  street,  or  by  coaches  whose  itinerary 
may  be  only  a  few  city  blocks,  or  who  seek  the  use  of  gram  eleva- 
tors or  be  secured  in  a  night's  accommodation  at  a  wayside  inn,  or 
in  the  weight  of  a  five-cent  loaf  of  bread.  We  do  not  say  this  to 
belittle  such  rights  or  to  exaggerate  the  effect  of  insurance,  but  to 
exhibit  the  principle  which  exists  in  all  and  brings  all  under  the 
same  governmental  power.  ... 

The  bill  attacks  the  statute  ...  as  discriminating  against 
complainant  because  the  statute  excludes  from  its  provisions 
farmers'  mutual  insurance  companies,  orgamzed  and  doing  busi- 


7G2      THE    FOURTEENTH   AMENDMENT   AND    PUBLIC    CALLINGS. 

ness  under  the  laws  of  the  State  and  insuring  only  farm  prop- 
erty. .  .  . 

A  discrimination  is  valid  if  not  arbitrary,  and  arbitrary  m  the 
legislative  sense,  that  is,  outside  of  that  wide  discretion  which  a 
legislature  may  exercise.  A  legislative  classification  may  rest  on 
narrow  distinctions.  Legislation  is  addressed  to  evils  as  they  may 
appear,  and  even  degrees  of  evil  may  determine  its  exercise.  Ozan 
Lumber  Co.  v.  Union  County  Bank,  207  U.  S.  25L  There  are 
certamly  differences  between  stock  companies,  such  as  complainant 
is,  and  the  mutual  companies  described  in  the  bill,  and  a  recogni- 
tion of  the  differences  we  cannot  say  is  outside  of  the  constitutional 
power  of  the  legislature.     Orient  Ins.  Co.  v.  Daggs,  182  U.  S.  557. 

Decree  affirmed.^ 

LuRTON,  J.,  .  .  .  took  no  part.  .  .  . 

Lamar,  J.,  dissenting.  ...  The  Chief  Justice  and  Mr. 
Justice  Van  Devanter  concur  in  this  dissent. 

1  See  Northwestern  National  L.  Ins.  Co.  v.  Riggs,  203  U.  S.  243  (1906); 
and  German  AUiance  Ins.  Co.  v.  Hale,  219  U.  S.  307  (1911).  —  Ed. 


LOAN   ASSOCIATION    V.    TOPEKA.  763 

Section  VI. 
The  Fourteenth  Amendment  and  Taxation, 
LOAN   ASSOCIATION   v.   TOPEKA. 
SuPRExME  Court  of  the  United  States.     1875. 
[20  Wallace,  655.]  ^ 
Error  to   the   Circuit   Court   of   the  United  States  for  the 
District  of  Kansas. 

In  the  Circuit  Court  of  the  United  States  for  the  District  of 
Kansas,  the  Citizens'  Savings  and  Loan  Association  of  Cleveland 
brought  action  against  the  city  of  Topeka  on  interest  coupons 
attached  to  bonds  drawn  by  that  city  in  favor  of  the  Kmg  Wrought- 
Iron  Bridge  Manufacturing  and  Iron- Works  Company.  The 
bonds  stated  that  they  were  issued  for  the  purpose  of  encouraging 
the  company  to  estabUsh  and  operate  bridge  shops  in  Topeka,  and 
that  they  were  issued  in  pursuance  of  two  designated  Kansas 
statutes.  The  declaration  stated  that  the  city  issued  one  hundred 
of  these  bonds,  of  $1000  each,  as  a  donation,  that  the  interest 
coupons  first  due  were  paid  out  of  a  fund  raised  by  taxation  for 
the  purpose,  and  that  thereafter  the  plaintiff  bought  for  value  the 
bonds  and  the  coupons  on  which  suit  was  brought.  To  this 
declaration  the  city  demurred.  It  was  conceded  that  the  statu- 
tory language  authorized  the  issue  of  such  bonds  and  that  the 
statutory  steps  had  been  taken;  but  the  court,  holding  that 
the  legislature  had  not  power  to  pass  such  statutes,  sustained  the 
demurrer  and  gave  judgment  in  favor  of  the  city. 

A.  Ennis,  for  plaintiff  in  error,  and  Ross  and  others,  contra. 
Miller,  J.,  delivered  the  opinion  of  the  court. 
Two  grounds  are  taken  in  the  opinion  of  the  circuit  judge  and  in 
the  argument  of  counsel  for  defendant,  on  which  it  is  insisted  that 
the  section  of  the  statute  of  February  29th,  1872,  on  which  the 
main  reliance  is  placed  to  issue  the  bonds,  is  unconstitutional. 

The  first  of  these  is,  that  by  section  five  of  article  twelve  of  the 
constitution  of  that  State  it  is  declared  that  provision  shall  be 
made  by  general  law  for  the  organization  of  cities,  towns,  and 
\411ages;  and  their  power  of  taxation,  assessment,  borro^ving 
money,  contracting  debts,  and  loaning  their  credit,  shall  be  so 
restricted  as  to  prevent  the  abuse  of  such  power. 

The  argument  is  that  the  statute  in  question  is  void  because  it 
authorizes  cities  and  towns  to  contract  debts,  and  does  not  contain 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


764  THE    FOURTEENTH    AMENDMENT    AND    TAXATION. 

any  restriction  on  the  power  so  conferred.  But  wiicther  the 
statute  which  confers  power  to  contract  debts  should  always  con- 
tain some  limitation  or  restriction,  or  whether  a  general  restriction 
applicable  to  all  cases  should  be  passed,  antl  whether  in  the  absence 
of  both  the  grant  of  power  to  contract  is  wholly  void,  are  questions 
whose  solution  we  prefer  to  remit  to  the  State  courts,  as  in  this  case 
we  find  ample  reason  to  sustain  the  demurrer  on  the  second 
ground  on  which  it  is  argued  by  counsel  and  sustained  by  the  Cir- 
cuit Court. 

That  proposition  is  that  the  act  authorizes  the  to\\'ns  and  other 
municipalities  to  which  it  applies,  by  issuing  bonds  or  loaning  their 
credit,  to  take  the  property  of  the  citizen  under  the  guise  of  taxa- 
tion to  pay  these  bonds,  and  use  it  in  aid  of  the  enterprises  of  others 
which  are  not  of  a  public  character,  thus  perverting  the  right  of 
taxation,  which  can  onl}'  be  exercised  for  a  pul)lic  use,  to  the  aid  of 
individual  interests  and  personal  purposes  of  profit  and  gain. 

The  proposition  as  thus  broadly  stated  is  not  new,  nor  is  the 
question  which  it  raises  difficult  of  solution.  .  .  . 

We  assume  that  unless  the  legislature  of  Kansas  had  the  right  to 
authorize  the  counties  and  towns  in  that  State  to  levy  taxes  to  be 
used  in  aid  of  manufacturing  enterprises,  conducted  by  individuals, 
or  private  corporations,  for  purposes  of  gain,  the  law  is  void,  and 
the  bonds  issued  under  it  are  also  void.  We  proceed  to  the  inquiry 
w^hether  such  a  power  exists  in  the  legislature  of  the  State  of  Kan- 
sas. 

We  have  already  said  the  question  is  not  new.  The  subject  of 
the  aid  voted  to  railroads  by  counties  and  towns  has  been  brought 
to  the  attention  of  the  courts  of  almost  every  State  in  the  Union. 
It  has  been  thoroughly  discussed  and  is  still  the  subject  of  discus- 
sion in  those  courts.  It  is  quite  true  that  a  decided  preponderance 
of  authority  is  to  be  found  in  favor  of  the  proposition  that  the  legis- 
latures of  the  States,  miless  restricted  by  some  special  provisions  of 
their  constitutions,  ma}^  confer  upon  these  municipal  bodies  the 
right  to  take  stock  in  corporations  created  to  build  railroads,  and 
to  lend  their  credit  to  such  corporations.  Also  to  le\y  the  neces- 
sary taxes  on  the  inhabitants,  and  on  property  within  their  limits 
subject  to  general  taxation,  to  enable  them  to  pay  the  debts  thus 
incurred.  But  vers^  few  of  these  courts  have  decided  this  without  a 
division  among  the  judges  of  which  they  were  composed,  while 
others  have  decided  against  the  existence  of  the  power  altogether. 
The  State  v.  Wapello  Co.,  9  Iowa,  308;  Hanson  v.  Vernon,  27  Id. 
28;  Sharpless  v.  Mayor,  &c.,  21  Pennsylvania  State,  147;  Whiting 
V.  Fond  du  Lac,  25  Wisconsin,  188. 


LOAN   ASSOCIATION    V.    TOPEKA.  765 

In  all  these  cases,  however,  the  decision  has  turned  upon  the 
question  whether  the  taxation  by  which  this  aid  was  afforded  to  the 
building  of  railroads  was  for  a  public  purpose.  Those  who  came 
to  the  conclusion  that  it  was,  held  the  laws  for  that  purpose  valid. 
Those  who  could  not  reach  that  conclusion  held  them  void.  In  all 
controversy  this  has  been  the  turning-point  of  the  judgments  of 
the  courts.  And  it  is  safe  to  say  that  no  court  has  held  debts 
created  in  aid  of  railroad  companies,  by  counties  or  towns,  valid  on 
any  other  ground  than  that  the  purpose  for  which  the  taxes  were 
levied  was  a  public  use,  a  purpose  or  object  which  it  was  the  right 
and  the  duty  of  State  governments  to  assist  by  money  raised  from 
the  people  by  taxation.  The  argument  in  opposition  to  this  power 
has  been,  that  railroads  built  by  corporations  organized  mainly  for 
purposes  of  gam  —  the  roads  which  they  built  being  under  their 
control,  and  not  that  of  the  State  —  were  private  and  not  public 
roads,  and  the  tax  assessed  on  the  people  went  to  swell  the  profits 
of  individuals  and  not  to  the  good  of  the  State,  or  the  benefit  of  the 
public,  except  in  a  remote  and  collateral  way.  On  the  other  hand 
it  was  said  that  roads,  canals,  bridges,  navigable  streams,  and  all 
other  highways  had  in  all  times  been  matter  of  public  concern. 
That  such  channels  of  travel  and  of  the  carrying  business  had 
always  been  established,  improved,  regulated  by  the  State,  and 
that  the  railroad  had  not  lost  this  character  because  constructed  by 
individual  enterprise,  aggregated  into  a  corporation. 

We  are  not  prepared  to  say  that  the  latter  view  of  it  is  not  the 
true  one,  especially  as  there  are  other  characteristics  of  a  public 
nature  conferred  on  these  corporations,  such  as  the  power  to  obtain 
right  of  way,  their  subjection  to  the  laws  which  govern  common 
carriers,  and  the  like,  which  seem  to  justify  the  proposition.  Of 
the  disastrous  conseciuences  which  have  followed  its  recognition 
by  the  courts  and  which  were  predicted  when  it  was  first  estab- 
lished there  can  be  no  doubt. 

We  have  referred  to  this  history  of  the  contest  over  aid  to  rail- 
roads by  taxation,  to  show  that  the  strongest  advocates  for  the 
validity  of  these  laws  never  placed  it  on  the  ground  of  the  unlimited 
power  in  the  State  legislature  to  tax  the  people,  but  conceded  that 
where  the  purpose  for  which  the  tax  was  to  be  issued  could  no 
longer  be  justly  claimed  to  have  this  public  character,  but  was 
purely  in  aid  of  private  or  personal  objects,  the  law  authorizing  it 
was  beyond  the  legislative  power,  and  was  an  unauthorized  inva- 
sion of  private  right.  Olcott  v.  Supervisors,  16  Wallace,  689; 
People  V.  Salem,  20  Michigan,  452;  Jenkins  v.  Andover,  103  Massa- 


766  THE   FOURTEENTH    AMENDMENT    AND    TAXATION. 

chusetts,  94;    Dillon  on  Municipal  Corponitions,  §  587;    2  Red- 
field's  Law  of  Kailways,  398,  rule  2. 

It  must  be  conceded  that  there  are  such  rights  in  every  free 
government  beyond  the  control  of  the  State.  A  government 
which  recognized  no  such  rights,  which  held  the  lives,  the  liberty, 
and  the  property  of  its  citizens  subject  at  all  times  to  the  absolute 
disposition  and  unlimited  control  of  even  the  most  democratic 
depository  of  power,  is  after  all  l)ut  a  despotism.  It  is  true  it  is  a 
despotism  of  the  many,  of  the  majority,  if  you  choose  to  call  it  so, 
but  it  is  none  the  less  a  despotism.  It  may  well  be  doubted  if  a 
man  is  to  hold  all  that  he  is  accustomed  to  call  his  o\\ti,  all  in  which 
he  has  placed  his  hapi)iness,  and  the  security  of  which  is  essential 
to  that  happiness,  under  the  unlimited  dominion  of  others,  whether 
it  is  not  wiser  that  this  power  should  be  exercised  by  one  man  tlian 

by  many. 

The  theory  of  our  governments.  State  and  Kational,'is  opposed  to 
the  deposit  of  unlimited  power  anywhere.  The  executive,  the 
legislative,  and  the  judicial  branches  of  these  governments  are  all 
of  limited  and  defined  powers. 

There  are  limitations  on  such  power  which  grow  out  of  the  essen- 
tial nature  of  all  free  govermnents.  Implied  reservations  of  indi- 
vidual rights,  without  which  the  social  compact  could  not  exist, 
and  which  are  respected  by  all  governments  entitled  to  the  name. 
No  court,  for  instance,  would  hesitate  to  declare  void  a  statute 
which  enacted  that  A.  and  B.  who  were  husband  and  wife  to  each 
other  should  be  so  no  longer,  but  that  A.  should  thereafter  be  the 
husband  of  C,  and  B.  the  wiie  of  D.  Or  which  should  enact  that 
the  homestead  now  owned  by  A.  should  no  longer  be  his,  but  should 
henceforth  be  the  property  of  B.  Whiting  v.  Fond  du  Lac,  25  ^\'is. 
188;  Cooley  on  Constitutional  Limitations,  129,  175,  487;  Dillon 
on  Municipal  Corporations,  §  587.  .  .  . 

To  lay  with  one  hand  the  power  of  the  government  on  the  prop- 
erty of  the  citizen,  and  with  the  other  to  bestow  it  upon  favored 
individuals  to  aid  private  enterprises  and  build  up  private  fortunes, 
is  none  the  less  a  robbery  because  it  is  done  under  the  forms  of  law 
and  is  called  taxation.  This  is  not  legislation.  It  is  a  decree  under 
legislative  forms. 

Nor  is  it  taxation.  A  "  tax,"  says  Webster's  Dictionary,  "  is  a 
rate  or  sum  of  money  assessed  on  the  person  or  property  of  a  citizen 
by  government  for  the  use  of  the  nation  or  state."  "  Taxes  are 
burdens  or  charges  imposed  by  the  legislature  upon  persons  or  prop- 
erty to  raise  money  for  public  purposes."  Cooley  on  Constitu- 
tional Limitations,  479.  .  .  . 


LOXS   ASSOCIATION   V.    TOPEKA.  767 

We  have  established,  we  think,  beyond  cavil  that  there  can  be  no 
lawful  tax  which  is  not  laid  for  a  public  purpose.  It  may  not  be 
easy  to  draw  the  line  in  all  cases  so  as  to  decide  what  is  a  public  pur- 
pose in  this  sense  and  what  is  not. 

It  is  undoubtedly  the  duty  of  the  legislature  which  imposes  or 
authorizes  municipalities  to  impose  a  tax  to  see  that  it  is  not  to  be 
used  for  purposes  of  private  interest  instead  of  a  public  use,  and  the 
courts  can  only  be  justified  in  interposing  when  a  violation  of  this 
principle  is  clear  and  the  reason  for  interference  cogent.  And  in 
deciding  whether,  in  the  given  case,  the  object  for  which  the  taxes 
are  assessed  falls  upon  the  one  side  or  the  other  of  this  line,  they 
must  be  governed  mainly  by  the  course  and  usage  of  the  govern- 
ment, the  objects  for  which  taxes  have  been  customarily  and  by 
long  course  of  legislation  levied,  what  objects  or  purposes  have 
been  considered  necessar>'  to  the  support  and  for  the  proper  use 
of  the  government,  whether  State  or  municipal.  A\Tiatever  law- 
fully pertains  to  tliis  and  is  sanctioned  i)y  time  and  the  acquies- 
cence of  the  people  may  well  be  held  to  belong  to  the  public  use, 
and  proper  for  the  maintenance  of.  good  government,  though  this 
may  be  the  only  criterion  of  rightful  taxation. 

But  in  the  case  before  us,  in  which  the  towns  are  authorized  to 
contribute  aid  ])y  way  of  taxation  to  any  class  of  manufacturers, 
there  is  no  difficulty  in  holding  that  this  is  not  such  a  public  purpose 
as  we  have  been  considering.  If  it  be  said  that  a  benefit  results  to 
the  local  pul)lic  of  a  town  by  establishing  manufactures,  the  same 
may  be  said  of  any  other  Ijusiness  or  pursuit  which  employ's  capital 
or  labor.  The  merchant,  the  mechanic,  the  innkeeper,  the  banker, 
the  builder,  the  steamboat  owner  are  ecjually  promoters  of  the 
public  good,  and  equally  deserving  the  aid  of  the  citizens  by  forced 
contributions.  No  line  can  be  drawn  in  favor  of  the  manufacturer 
which  would  not  open  the  coffers  of  the  public  treasury  to  the 
importunities  of  two-thirds  of  the  business  men  of  the  city  or 
town. 

A  reference  to  one  or  two  cases  adjudicated  by  courts  of  the 
highest  character  will  be  sufficient,  if  any  authority  were  needed, 
to  sustain  us  in  this  proposition.^  .  .  .  Judgment  affirmed} 

Clifford,  J.,  dissenting.  .  .  . 

'  Here  were  cited  .\llen  v.  Jay,  60  Me.  124  (1872);  Lowell  v.  Boston,  111 
Mass.  454  (1873);  Jenkins  r.  .\ndover,  10-3  Mass.  94  (1869);  Curtis  v.  Whipple, 
24  Wis.  350  (1869) ;  and  \Miiting  t-.  Sheboygan  &  Fond  du  Lac  R.  Co.,  25  Wis! 
167,  188  (1870). —  Ed. 

«  See  Burlington  v.  Beasley,  94  U.  S.  310  (1877);  and  Fallbrook  Irrigation 
District  u.  Bradley,  164  U.  S.  112,  155  (1896).  —  Ed. 


768  THE    FOURTEENTH   AMENDMENT   AND    TAXATION. 

KIRTLAND  v.   HOTCHKISS. 
Supreme  Court  of  the  United  States.     1879. 
[100  United  States,  491.] ' 

Error  to  the  Supreme  Court  of  Errors,   Litchfield  County, 
Connecticut. 

In  the  state  court  Kirtland,  a  citizen  and  resident  of  Connecticut, 
brought  suit  to  restrain  the  levying  of  warrants  upon  his  real 
estate  in  satisfaction  of  taxes  levied  upon  him  under  a  Connecticut 
statute  by  reason  of  his  owning  bonds,  executed  in  Chicago,  pay- 
able there,  for  a  loan  of  money  secured  by  deeds  of  trust  on  Chicago 
real  estate,  the  bonds  being  expressed  on  their  face  to  be  "  made 
under,  and  ...  to  be  construed  by  the  laws  of  Illinois."  The  Con- 
necticut statute  (Revision  of  1866,  tit.  64,  c.  1)  expressly  declared 
that  personal  property  in  that  State  "  or  elsewhere  "  should  in- 
clude, among  other  things,  bonds,  and  that  such  personal  property, 
being  the  property  of  a  resident  of  Connecticut,  should  be  assessed 
where  the  o^\^ler  resides.  The  state  court  held  that  the  assess- 
ments were  in  conformity  with  law  and  that  the  law  did  not 
infringe  the  plaintiff's  constitutional  right.  This  writ  of  error  was ^ 
prosecuted  upon  the  ground,  among  others,  that  the  statute  as 
interpreted  conflicts_withThe  Constitution  ot  the  United  States. 

Ashbd  Green  and  others,  for  plaintiff  in  error;    and  M.   W. 
Seymour,  contra. 

Harlan,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

In  McCuUoch  v.  State  of  Marjdand  (4  Wheat.  428),  this  court 
considered  very  fully  the  nature  and  extent  of  the  original  right  of 
taxation  which  remained  with  the  States  after  the  adoption  of  the 
federal  Constitution.  It  was  there  said  "  that  the  power  of  taxing 
the  people  and  their  property  is  essential  to  the  very  existence  of 
government,  and  may  be  legitimately  exercised  on  the  objects  to 
which  it  is  applicable  to  the  utmost  extent  to  which  the  govern- 
ment may  choose  to  carry  it."  Tracing  the  right  of  taxation  to 
the  source  from  which  it  was  derived,  the  court  further  said:  "JLL^ 
is  obvious  that  it  is  mi  infidpnt  of  sovprf^ip;Titv,  .nnd  is  coextensive 
with  that  to  w^hich  it  is  an  incident.  All  subjects  over  w^hich  the 
sovereign  power  of  a  State  extends  are  objects  of  taxation,  but  those 
^ovef^which  it~Hoes  not~extend  are^npon  the  soundpst  prin^iplps, 
exempt  from  taxation." 

1  An  abbreviated  statement  has  been  presented.  —  Ed. 


KIRTLAND    V.    HOTCHKISS.  769 

"  This  vital  power,"  said  this  court  in  Providence  Bank  v.  Bill- 
ings (4  Pet.  563j,  ''  may  be  abused;  but  the  Constitution  of  the 
United  States  was  not  intended  to  furnish  the  corrective  for  every 
abuse  of  power  which  may  be  committed  by  the  State  governments. 
The  interest,  wisdom,  and  justice  of  the  representative  body,  and 
its  relations  ^^^th  its  constituents,  furnish  the  only  security,  when 
there  is  no  express  contract,  against  unjust  and  excessive  taxation, 
as  well  as  against  unwise  legislation." 

In  St.  Louis  V.  The  Ferry  Company  (11  Wall.  423),  and  in  State 
Tax  on  Foreign-held  Bonds  (15  id.  300),  the  language  of  the  court 
was  equally  emphatic. 

In  the  last-named  case  we  said  that,  "  unless  restrained  by  pro- 
visioiLs  of  the  federal  Constitution,  the  poweTc)!  tlie  StmIi"'  -JiJ  tA  ^\\l 
mode,  form,  ami  extent  of  tnxntion  i>^  iipi;t>utt><l,  ^^■]^nr^^  H|.>  ^nK- 
iects  to  which  it  applies  are  ^\^ithin  her  jurisdiction." 

We  perceive  no  reason  to  modify  the  principles  announced  in 
these  cases  or  to  question  their  soundness.  They  are  fundamental 
and  vital  in  the  relations  which,  under  the  Constitution,  exist 
between  the  United  States  and  the  several  States.  Upon  their 
strict  observance  depends,  in  no  small  degree,  the  harmonious  and 
successful  working  of  our  complex  system  of  government,  federal 
and  State.  It  ma\',  therefore,  be  regarded  as  the  estal)lished 
doctrine  of  this  court,  that  so  long  as  the  State,  by  its  laws,  pre- 
scribing the  mode  and  sul)jects  of  taxation,  does  not  entrench  upon 
the  legitimate  authority  of  the  Union,  or  violate  any  right  recog- 
mzed,  or  secured,  by  the  Con.stitution  of  the  United  States,  this 
court,  as  between  the  State  and  its  citizen, /'gr.  affny^l  him  nn  rplipf 

ngninf^t  State  taxation^  however  unmst    npprP'.^^ivo    nr  nnftrnns 

Plainly,  therefore,  our  only  duty  is  to  inquire  whether  the  Con- 
stitution prohibits  a  State  from  taxing,  in  the  hands  of  one  of  its 
resident  citizens,  a  debt  held  by  him  upon  a  resident  of  another 
State,  and  evidenced  by  the  bond  of  the  debtor,  secured  by  deed 
of  trust  or  mortgage  upon  real  estate  situated  in  the  State  in  which 
the  debtor  resides. 

The  question  does  not  seem  to  us  to  be  very  difficult  of  solution. 
The  creditor,  it  is  conceded,  is  a  permanent  resident  within  the 
jurisdiction  of  the  State  imposing  the  tax.  The  debt  is  property 
in  his  hands  constituting  a  portion  of  his  wealth,  from  which  he  is 
under  the  highest  obligation,  in  common  vnth.  his  fellow-citizens  of 
the  same  State,  to  contribute  for  the  support  of  the  government 
whose  protection  he  enjoys. 


770  THE    FOURTEENTH    AMENDMENT   AND    TAXATION. 

That  debt,  although  a  species  of  intangil)le  property,  may ,  for  pur- 
poses of  taxation,  if  not  for  all  others,  be  regarded  as  situated  at  the 
domicile  of  the  creditor.  It  is  none  the  less  property  because  its 
amount  and  maturity  are  set  forth  in  a  lx)nd.  That  bond,  wher- 
ever actually  held  or  deposited,  is  only  evidence  of  the  debt,  and  if 
destroyed,  the  debt  —  the  right  to  demand  pa\Tnent  of  the  money 
loaned,  with  the  stipulated  interest  —  remains.  Nor  is  the  debt, 
for  the  purposes  of  taxation,  affected  by  the  fact  that  it  is  secured 
by  mortgage  upon  real  estate  situated  in  Illinois.  The  mortgage 
is  but  a  security  for  the  debt.  .  .  .  The  debt,  then,  having  its 
situs  at  the  creditor's  residence,  both  he  and  it  are,  for  the  purposes 
of^Taxation,  within  the  jurisdiction  of  the  State._  It  is,  conse- 
quentry,  for_Jhe^  State  to  determine,  consistently  witlTTttj '  ojVii 
fundamental  law,  whether  such  property  owned  by  one  of  its 
residents  shall  contril)ute,  b\^vay  of  taxation,^to  mamtgin  its 
government.  Its  discretion  in  that  regard  cannot  be  supervised 
or  controlled  by  any  department  of  the  federal  government,  for 
the  reason,  too  obvious  to  require  argument  in  its  supjxirt,  that 
such  taxation  \Tiolates  no  provision  of  the  federal  C  onstitutii^i. 
Manifestly  it  does  not,  as  is  supposed  by  counsel,  interfere  in  any 
true  sense  with  the  exercise  by  Congress  of  the  power  to  regulate 
commerce  among  the  several  States.  Nathan  v.  Louisiana,  8  How. 
73;  Cooley  on  Taxation,  62.  Nor  does  it,  as  is  further  supposed, 
abridge  the  privileges  or  immunities  of  citizens  of  the  United  States, 
or  deprive  the  citizen  of  life,  liberty,  or  property  without  due  proc- 
ess of  law,  or  violate  the  constitutional  guaranty  that  the  citizens 
of  each  State  shall  be  entitled  to  all  privileges  of  citizens  in  the 
several  States. 

Whether  the  State  of  Connecticut  shall  measure  the  contribution 
which  persons  resident  wdthin  its  jurisdiction  shall  make  by  way  of 
taxes,  in  return  for  the  protection  it  affords  them,  by  the  value  of 
the  credits,  choses  in  action,  bonds,  or  stocks  which  they  may  own 
(other  than  such  as  are  exempted  or  protected  from  taxation  under 
the  Constitution  and  laws  of  the  United  States) ,  is  a  matter  which 
concerns  only  the  people  of  that  State,  with  which  the  federal 
government  cannot  rightly  interfere. 

Judgment  affirmed} 

^  Compare  Savings  &  Loan  Society  v.  Multnomah  Coimty,  169  U.  S.  421 
(1898). 

See  Hawley  v.  Maiden,  232  U.  S.  1  (1914).  —  Ed. 


MAGOUN   V.    ILLINOIS   TRUST   AND    SAVINGS   BANK.  771 

MAGOUN   V.   ILLINOIS  TRUST  AND  SAVINGS 
BANK. 

Supreme  Court  of  the  United  States.     1898. 
[170  United  States,  283.] 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  lUinois. 

This  was  a  bill  in  equity  filed  m  the  Circuit  Court  of  the  United 
States  in  and  for  the  Northern  District  of  Illinois  by  Jessie  Norton 
Torrence  :Magoun,  a  resident  and  citizen  of  New  York,  against  the 
Trust  Company,  as  executor  of  and  trustee  under  the  last  will  and 
testament  of  Joseph  T.  Torrence,  deceased,  and  the  county  treas- 
urer of  Cook  County,  Illinois,  both  residents  and  citizens  of  Illi- 
nois, to  remove  a  cloud  from  the  real  estate  devised  by  said 
decedent  to  the  complainant,  and  to  enjoin  the  first-named  defend- 
ant from  voluntarily  paying,  and  the  couiny  li'ea.sUiei'  from  ^'ol- 
lecting  or  receivingTlhe  inhcntanc^c  tax,  amountmg  to  rr^^r^  thor. 
S5UUU,  aUfiged  to  be  due  upon  Th(^  Pntiro  oetnto  of  ^,jjjjjp,^)p^|  ^^^} 
for  which  the  complainant's  interest  in  said  estat^ewiiTfwrFppTTprl 
by  the  county  treasurer  to  be  lial^le. 

"  Ihe  bill  .  .  .  alleged  .  .  .  that  the  act  is  in  conflict  with  the 
provisions  of  the  P'ourteenth  Amendment. 

The  Trust  Company  answered,  .  .  .  submitting  the  question 
of  the  constitutionality  of  the  law  to  the  court.  .  .  . 

The  county  treasurer  denied  that  the  act  was  unconstitu- 
tional. .  .  . 

The  cause  was  heard  on  bill  and  answers,  and  a  decree  was  en- 
tered dismissing  the  bill  from  which  an  appeal  was  pravedTo  this 
court  /ind  ;ill(>\v( >(  1 . 

The  act^.  .  .  is  entitled  "An  act  to  tax  gifts,  legacies  and 
inheritances  in  certain  cases.  .  .  ."  Rev.  Stat.  Illinois,  1895, 
c.  120.  .  .  . 

"  §  1.  ...  All  property,  real,  personal  and  mixed  which  shall 
pass  by  will  or  by  the  intestate  laws  of  this  State  from  any  person 
who  mav  die  seized  or  possessed  of  the  same  while  a  resident  of 
this  Stntoi  or  ,  .  Tvhich  xiLoperty  .  .  .  shall  be  within  this 
Statt?.^  .  ._ shall  be  .  .  .  subject  to  a  tax  .  .  .,  and  all  heirs", 
legatees  and  devisees,  aclmimstrators,  ex?mtors  and  trustees  shall 
be  liable  for  .  .  .  such  taxes  .  .  .  when  the  beneficial  interest 
shall  pass  to  .  .  .  father,  mother,  husband,  wife,  child,  brother, 
sister,  wife  or  widow  of  the  son  or  the  husband  of  the  daughter,  or 


772  THE   FOURTEENTH   AMENDMENT   AND    TAXATION. 

any  child  or  children  adopted  .  .  .,  or  to  any  person  to  whom  the 
deceased,  for  not  less  than  ten  years  prior  to  death,  stood  in  the 
acknowledged  relation  of  a  parent,  or  to  any  lineal  descendant  .  .  ., 
the  rate  .  .  .  shall  be  one  dollar  on  every  hundred  dollars  .  .  , 
received  by  each  person,  and  .  .  .  the  same  rate  for  any  less 
amount,  provided  that  any  estate  .  .  .  less  .  .  .  than  $20,000 
shall  not  be  subject  to  any  such  .  .  .  taxes,  and  the  tax  is  to  be 
levied  in  above  cases  only  upon  the  excess  of  $20,000  received  by 
each  person.  When  the  beneficial  interests  .  .  .  shall  pass  to  .  .  . 
uncle,  aunt,  niece,  nephew  or  any  lineal  descendant  of  the  same, 
.  .  .  the  rate  .  .  .  shall  be  two  dollars  on  every  hundred  dollars 
...  on  the  excess  of  $2,000  so  received  by  each  person.  In  all 
other  cases  the  rate  shall  be  ...  :  On  each  .  .  .  hundred  dol- 
lars .  .  .  and  at  the  same  rate  for  any  less  amount;  on  all  estates 
of  $10,000  and  less,  three  dollars;  on  all  estates  of  over  $10,000  and 
not  exceeding  $20,000,  four  dollars;  on  all  estates  over  $20,000  and 
not  exceeding  $50,000,  five  dollars;  and  on  all  estates  over  $50,000, 
six  dollars:  Provided,  That  an  estate  in  the  above  case  .  .  .  less 
.  .  .  than  $500  shall  not  be  subject  to  any  .  .  .  tax."  .  .  . 

Two  other  cases  were  argued  and  submitted  with  this  case.  .  .  . 

W.  D.  Guthrie  and  others,  for  plaintiffs  in  error;  and  E.  C. 
Akin  and  others,  contra. 

McKenna,  J.,  after  stating  the  case,  delivered  the  opinion  of  the 
court. 

Legacy  and  inheritance  taxes  are  not  new  in  our  laws.  .  .  .  They 
are  not  new  in  the  laws  of  other  countries.  In  State  v.  Alston,  94 
Tenn.  674,  Judge  Wilkes  gave  a  short  history  of  them.  ...  "In 
the  United  States  they  were  enacted  in  Pennsylvania  in  1826; 
Maryland,  1S44;  Delaware,  1869;  West  Virginia,  1887,  and  still 
more  recently  in  Connecticut,  New  Jersey,  Ohio,  Maine,  Massa- 
chusetts, 1891;  Tennessee  in  1891,  chapter  25  now  repealed  by 
chapter  174,  acts  1893.  They  were  adopted  in  North  Carolina  in 
1846,  but  repealed  in  1883.  Were  enacted  in  Virginia  in  1844, 
repealed  in  1855,  reenacted  in  1863,  and  repealed  in  1884."  Other 
States  have  also  enacted  them  —  Minnesota  by  constitutional 
provision. 

The  constitutionality  of  the  taxes  has  been  declared.  .  .  . 

It  is  not  necessary  to  review  these  cases,  or  state  at  length  the 
reasoning  by  which  they  are  supported.  They  are  based  on  two 
principles:  1.  An  inhpHtnnr-p  tf]^  is  not  one  on  proper|.v-  but,  c^ytp  on 
thesuccession.  2.  The  right  to  take  property  by  devise_or 
descent  is  the  creature  of  the  law,  and  not  a  natural  right  —  a 


MAGOUN    V.    ILLINOIS   TRUST   AND    SAVINGS   BANK.  773 

privilege,  and  therefore  the  authority  which  coiifersitmavim- 
pose  conditions  ui^mTit.^  From_Jhes^Jrmcipl^  is  deduced 
that  the  States  mnv  tax  the  privilep;p^  discriminnte  between^  rela- 
tives,_and  between  these  and  strangers,  and  grant  exemptions ; 
ancTare  not  precluded  from  this  power  by  the  provisions  of  the 
respective  state  constitutions  requiring  uniformity  and  equalitv  of 
taxation. 

The  second  principle  was  given  prominence  in  the  arguments  at 
bar.  The  appellee  claimed  that  the  power  of  the  State  could  be 
exerted  to  the  extent  of  making  the  State  the  heir  to  everybody, 
and  the  appellant  asserted  a  natural  right  of  children  to  inherit. 
Of  the  former  proposition  we  are  not  required  to  express  an  opinion. 
Xor  indeed  of  the  latter,  for  appellant  conceded  that  testamentary 
disposition  and  inheritance  were  subject  to  regulation.^  .  .  , 

Our  inquiry  must  be  not  what  will  satisfy  the  provisions  of  the 
state  constitutions,  but  what  wnW  satisfy  the  rule  of  the  federal 
Constitution.  The  power  of  the  States  over  successions  may  be  as 
plenary  in Jhe  abstract  as  appellee. contends  for,  nevertheless  it 
must  be  exerted  within  the  limitations  of  that  constitution.  If  the 
power  of  de\isc  or  of  inheritance  be  a  privilege,  it  must  be  con- 
ferred or  regulated  by  equal  laws. 

This  brings  us  to  the  law  in  controversy.  The  appellant  attacks 
both  its  principles  and  its  provisions  -^its  principles  as  necessariTy 
arljitrarv  and  its  provisions  as  causing  discriminations  and  creating 
inequality  in  the  l)urdens  of  taxation. 

Is  the  act  open  to  this  criticism  ?  The  clause  of  the  Fourteenth 
Amendment  especially  invoked  is  that  which  prohibits  a  State 
denying  to  any  citizen  the  equal  protection  of  the  laws.  What 
satisfies  this  equalitv  has  not  been  and  prol^aljly  never  can  be 
precisely  dehned.  Gcnerallvit  has  been  said  that  it  "  only  re- 
quires the  same  means  nnd  ^TT^iods  to  l)e  applied  impart iallv  to  all 
the  constituents  of  a  class  so  that  the  law  shall  operate  equallv  and 
uniformly  upon  all  persons  in  similar  circumstances."  Kentucky 
Kaiiroad  Tax  Cases,  115  U.  S.  321,  337.  It  does  not  prohibit 
legislation  which  is  lunited,  either  in  the  objects  to  which  it  is 
directed  or  by  the  territory  within  which  it  is  to  operate.  It 
rTLerely  requires  that  all  persons  subjected  to  such  legislation  shall 
be  Treated  alike  under  like  circumstances  and  conditions,  botji^  in 
the  privilege  conferred  and  the  liabilities  imposed.     Hayes  v.  Mis- 


Here  were  cited  United  States  v.  Fox,  94  U.  S.  315,  320  (1877);  Mager  v. 
Grima,  8  How.  490,  493  (1850);  United  States  v.  Perkins,  163  U.  S.  625,  627 
(1896) ;  and  other  cases.  —  Ed. 


774  THE   FOURTEENTH   AMENDMENT   AND   TAXATION. 

souri,  120  U.  S.  68.  Similar  citations  fould  he  multiplied.  But 
what'  is  the  test  of  likeness  and  unlilceness  of  circumstances  and 
conditions  ?  These  expressions  have  almost  the  generality  of  the 
principle  they  are  used  to  expound,  and  yet  they  are  definite  steps 
to  precision  and  usefulness  of  definition,  when  connect etl  with  the 
facts  of  the  cases  in  which  they  are  employ  etl.  With  these  for 
illustration  it  may  be  safely  said  that  the  rule  prescribes  no  rigid 
equality  and  permits  to  the  discretion  and  wisdom  of  the  State  a 
wide  latitude  as  far  as  interference  by  this  court  is  concerned.  Nor 
with  the  impolicy  of  a  law  has  it  concern.  Mr.  Justice  Field  said 
in  Mobile  County  v.  Kimball,  102  U.  S.  691,  that  this  court  is  not  a 
harbor  in  which  can  be  found  a  refuge  from  ill-advised,  unequal  and 
oppressive  state  legislation.  And  he  observed  in  another  case: 
"  It  is  hardly  necessary  to  say  that  hardship,  impolicy  or  injustice 
of  state  laws  is  not  necessarily  an  objection  to  their  constitutional 
validity." 

The  rule,  therefore,  is  not  a  substitute  for  municipal  la^^■ ;  iUyii^v 
prescribes  that  thaU'iw  h-n'fl  thr  ■^^tlil'Mt^'  "^  ''"n.-ilit  v  of  oponi  I  ion, 
,^r.7rsrp7oTTf£p'^^.uinn  floo^  not_incan  indisciiuiinatc  oDcrat ion 
on  persons  merely  as  such,  but  on  persons  acronlin}::  to  their  rcia- 
tiGns^  In  some  circumstances  it  may  not  tax  A  more  than  B,  ijut 
iTXT)e  of  a  different  trade  or  profession  than  B,  it  may.  And  in 
matters  not  of  taxation,  if  A  be  a  different  kind  of  corporation 
than  B,  it  may  subject  A  to  a  different  rule  of  responsibility  to 
servants  than  B,  Missouri  Pacific  Railway  v.  Mackey,  127  U.  S.  205, 
to  a  different  measure  of  damages  than  B,  Minneapolis  &  St.  Louis 
Railway  v.  Beckwith,  129  U.  S.  26,  and  it  permits  special  legislation 
in  all  of  its  varieties.  Missouri  Pacific  Railway  v.  Mackey,  127 
U.  S.  205;  Minneapolis  and  St.  Louis  Railway  v.  Herrick,  127  U.  S. 
210;  Duncan  v.  Missouri,  152  U.  S.  377. 

In  other  words,  the  State  may  distinguish,  select  and  classify 
objects  of  legislation,  and  necessarily  this  po.wer  must  have  a  wide 
range  of  discretion.  It  is  not  wdthout  limitation,  of  course. 
*'  Clear  and  hostile  discriminations  against  particular  persons  and 
classes,  especially  such  as  are  of  unusual  character,  unknown  to  the 
practice  of  our  governments,  might  be  obnoxious  to  the  constitu- 
tional prohibition,"  said  Mr.  Justice  Bradley,  in  Bell's  G^  Rail- 
road V.  Pennsylvania,  134  U.  S.  232,  237.  .... 

Of  taxation,  and  the  case  at  bar  is  of  taxation,  Mr.  Justice  Brad- 
ley said  in  the  Bell's  Gap  Railroad  v.  Pennsylvania,  134  U.  S.  232, 
and  Mr.  Chief  Justice  Fuller  in  Giozza  v.  Tiernan,  148  U.  S.  657, 
that  the  Fourteenth  Amendment  was  not  intended  to  compel  the 


iL^GOUN    v.    ILLINOIS   TRUST   AND    SAVINGS    B.INK.  775 

State  to  adopt  an  iron  rule  of  equal  taxation.  The  range  of  the 
State's  power  was  expressed  by  Mr.  Justice  Bradley,  as  follows: 
"  It  may,  if  it  chooses,  exempt  certain  classes  of  property  from  any 
taxation  at  all,  such  as  churches,  libraries  and  the  property  of 
charitable  institutions.  It  may  impose  different  specific  taxes 
upon  different  trades  and  professions  and  vary  the  rates  of  excise 
upon  various  products;  it  may  tax  real  estate  and  personal  prop- 
erty m  a  different  manner;  it  may  tax  visible  property  only,  and 
not  tax  securities  for  payment  of  money;  it  may  allow  deductions 
for  indebtedness,  or  not  allow  them.  All  such  regulations,  and 
those  of  like  character,  so  long  as  they  proceed  within  reasonable 
limits  and  general  usage,  are  within  the  discretion  of  the  state 
legislature,  or  the  people  of  the  State  framing  their  constitu- 
tion." .  .  . 

There  are  three  main  classes  in  the  Illinois  statute,  the  first  and 
second  boin^  ])ascd.  respectivclv.  on  lineal  and  collateral  relation- 
ship to  the  testator  or  intestate,  and  the  third  V)eing  composed  of 
strangers  to  his  l)lood  and  distant  relatives.  The  latter  is  again 
diviJfHl  inti>  four  sul)cl:isses  dependent  upon  the  amount  of  the 
estate  received.  The  first  two  classes,  therefore,  depend  on  sub- 
stautial  differences.  djCfiTcncffi  whii-h  niny  'listintniisb  t'^'^'m  tji'm 


each  other  and  them  or  either  of  them  from  the  other  class  —  dif- 
ferencesTtherefore,  which  "  bear  a  justand  proper  relation  to  the 
attempted  classification  "  —  the  rule  expressed  in  the  (Julf,  Colo-' 
~nido  i'  Santa  Fe  Illulway  v.  Ellis,  165  U.  S.  150.  And  if  the 
constituents  of  each  class  are  affected  alike,  the  rule  of  equality 
prescril)ed  by  the  cases  is  satisfied.  In  other  words,  the  law 
operates  "  eciuallv  and  uniformly  upon  all  persons  in  similar  cir- 
cumstaaces."  .  .  . 

Nor  do  the  exemptions  of  the  statute  render  its  operation  unequal 
\\nthin  the  meaning  of  the  Fourteenth  Amendment.  .  .  . 

The  provisions  of  the  statute  in  regard  to  the  tax  on  legacies  to 
strangers  to  the  blood  of  the  intestate  need  further  comment.  .  '  . 

Til  ere  are  four  classes  created,  and  manifestly  there  is  eoualitv 
hptu:ppn  thp  mppibers  ot  eaclTclass.  Ineciualitv  is  onlv  found  by 
comparing:  the  members  of  one  class  wnth  those  of  another.  It  is 
illustrated  by  appellani  as  foUowS:  Une  who  receives  a  legacy  of 
810,000  pays  3  per  cent,  or  S300,  thus  receiving  S9700  net;  while 
one  receiving  a  legacy  of  SI 0,001  pays  4  per  cent  on  the  whole 
amount,  or  S400.04,  thus  receiving  S9600.96,  or  $99.04  less  than  the 
one  whose  legacy  was  actually  one  dollar  less  valuable.  This 
method  is  applied  throughout  the  class. 


771)  THE    FOURTEENTH    AMENDMENT    AND    TAXATION. 

These,  however,  are  conceded  to  be  extreme  ilhistrations,  and  we 
thinkrir[TmTr)rc,  that  they  turni^d>jiojei4  practic^aLoiHirglmn 

^rTTT^TTggir^  \VluTiTnne^a(-i.-s  dillVr  in  sul>stantial  ex- 

tent, if  the  rate  increases  tTHn^THninn  creases  to  '^wMiV  .huivc  .  .  . 

me  tax  IS  not  on  money ;  it  is  on  the  n^lit  to  ndieril ;  and  ht-nt-e  a 
condition  of  inheritance,  and  it  may  l^e  ^nuled  according  to  the 
value  of  that  inheritance.  The  condition  is  not  arbitrary  because 
it  is  determined  by  that  value;  it  is  not  unequal  in  operation 
because  it  does  not  levy  the  same  percentage  on  every  dollar;  does 
not  fail  to  treat  "  all  alike  under  like  circumstances  and  conditions, 
both  in  the  privilege  conferred  and  the  liabilities  imposed."  The 
jurisdiction  of  courts  is  fixed  by  amounts.  The  right  of  appeal  is. 
As  was  said  at  bar  the  Congress  of  the  United  States  has  classified 
the  right  of  suitors  to  come  into  the  United  States  courts  by 
amounts.  Regarding  these  alone,  there  is  the  same  inequality 
thatjs  urged  ag^ii5it  classification  of  the  Illinois  law.  All  license 
laws~and  all  specific  taxes  have  in  them  an  element  of  inequality, 
neveVtlieless  they  are  universally  imposed  and  their  legality  has 
never  been  questioned.  We  tj^ink  the  classification  of  the  Illinois 
la^  was  in  the  power  of  the  legisiaturcJojna^£^_an.l  the  dcHTeepf 
the-Circuit  Court  Is  ~"3;:_£li/Fn/^(v/.' 

Brewer,  J.,  dissenting.  I  am  unable  to  concur  in  the  foregoing 
opinion,  so  far  as  it  sustains  the  constitutionality  of  that  part  of 
the  law  which  grades  the  rate  of  the  tax  upon  legacies  to  strangers 
by  the  amount  of  such  legacies.  .  .  . 


NORWOOD  V.  BAKER. 

Supreme  Court  of  the  United  States.     1898. 

[172  UniTed  Stam;  2m:]*  ^ '" 

"In  the  Circuit  Court  of  the  United"  States  for  the  Southern  Dis- 
trict of  Ohio  suit  was  brought  to  restrain  the  village  of  Norwood 
from  enforcing  an  assessment  against  the  plaintiff's  land  for  ex- 
tending a  certain  street,  the  plaintiff's  land  being  the  only  land  on 
the  extension,  and  the  village  having  passed  an  ordinance  assessing 

1  See  Plummer  v.  Coler,  178  U.  S.  115  (1900);  and  Blackstone  v.  Miller,  188 
U.  S.  189  (1903).  —  Ed. 

2  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


NORWOOD    V.    BAKER.  777 

upon  each  front  foot  of  this  abutting  property  sums  which  in  the 
aggregate  amounted  to  the  entire  cost  and  expense  of  the  con- 
demnation, inclucUng  the  amount  found  by  the  jury  as  compen- 
sation for  the  property  taken,  the  costs  in  the  condemnation 
proceedings,  solicitor  and  expert  witness  fees,  advertising,  and  in- 
terest on  the  bonds  issued  to  pay  for  the  condemnation.  The  court 
adjudged  the  assessment  to  be  in  violation  of  the  Fourteenth 
Amendment  and  enjoined  the  village  from  enforcing  it  (74  Fed. 
997).  Thereupon  an  appeal  was  taken  directly  to  the  Supreme 
Court  of  the  United  States,  because  the  case  involved  the  con- 
struction and  application  of  the  Constitution  of  the  United  States. 
W.  E.  Bundij,  for  api)ellant;  and  C.  W.  Baker,  contra. 
Harlan,  J.,  delivered  the  opinion  of  the  court.  .  .  . 
The  plaintiff's  suit  proceeded  upon  the  ground^ distinctly  st^jgd, 
that  the  asses^lHOllt  iii  rTTTPStjon^was  m  violation  of  the  Fourteer.th 
AiTTendment  i)rovi(ling  that  no  State  shall  deprive  any  person  of 
property  without  due  process  of  law  nor  deny  to  any  person  witTTm 
its  jurisdiction  the  ecjual  protection  of  the  Jaws,  as  well  as  of  the 
Bill  of  kiglits  ot  tiie  (  onstitution  ot  Ohio. 

It  has  been  adjudged  that  the  due  process  of  law  prescribed  by 
that  Amendment  recjuire-s- compensation  to  be  made  or  secured  to 
the  owTier  when  private  property  is  taken  by  a  State  or  under  its 
authority  for  public  use.  Chicago,  Burlington  &c.  Railroad  v. 
Chicago,  166  U.  S.  226,  241;  Long  Island  Water  Supply  Co.  v. 
Brooklyn,  166  U.  S.  685,  695. 

The  taking  of  the  plaintiff's  land  for  the  street  was  under  the 
power  of  cininent  domain  —  a  power  which  this  court  has  said  was 
the  oltspring  of  i)olitical  necessity,  and  inseparable  from  sovereignty 
unless  denied  to  it  by  the  fundamental  law.  Searl  v.  Lake  County 
School  District,  133  U.  S.  553.  But  the  assessment  of  the  abutting 
property  for  the  cost  and  expense  incurred  l)V  tho  \  Jll-jp;"  "^^'j  -m 
e.xercisc  of  the  i)ower  of  taxation.  Except  for  the  provision  of  the 
constitution  oi  Ohio,  '."  .  .  LHe  State  could  have  authorized  benefits 
to  be  deducted  from  the  actual  value  of  the  land  taken,  without 
violating  the  constitutional  injunction  that  compensation  be  made 
for  private  property  taken  for  public  use;  for  the  benefits  received 
could  be  properly  regarded  as  compensation  -pro  tanto  for  the  prop- 
erty appropriated  to  public  use.  But  does  the  exclusion  of  benefits 
from  the  estimate  of  compensation  to  be  made  for  the  property 
actually  taken  for  public  use  authorize  the  public  to  charge  upon 
the  abutting  property  the  sum  paid  for  it,  together  with  the  entire 
costs  incurred  in  the  condemnation  proceedings,  irrespective  of  the 


778  THE   FOURTEENTH   AMENDMENT   AND    TAX.\TION. 

question  whether  the  property  was  benefited  by  the  opening  of  the 

street 

Undoubtedly  abutting  oNvners  may  bo  subjected  to  special  as- 
sessments to  meet  the  expenses  of  opening  pui)lic  highways  in 
front  of  their  property  —  such  assessments,  according  to  well- 
established  principles,  resting  upon  the  ground  that  special  Imrdons 
may  be  imposed  for  special  or  peculiar  benefits  accruing  from 
public  improvements.     Mobile  County  v.  Kimball,  102  U.  S.  691, 
703  704-  Illinois  Central  Railroad  v.  Decatur,  147  U.  S.  190,  202; 
Bauman  V.  Ross,  167  U.  S.  548,  589,  and  authorities  there  cited. 
And  according  to  the  weight  of  judicial  authority,  the  legislature 
has  a  large  discretion  in  defining  the  territory  to  be  deemed  specially 
benefited  by  a  public  improvement,  and  which  may  be  subjected 
to  special  assessment  to  meet  the  cost  of  such  improvements.     In 
Williams  v.  Eggleston,  170  U.  S.  304,  311,  where  the  only  question, 
as  this  court  stated,  was  as  to  the  power  of  the  legislature  to  cast 
the  burden  of  a  public  improvement  upon  certain  towns,  which  had 
been  judicially  determined  to  be  towns  benefited  ])y  such  improve- 
ment, it  was  said:   "  Neither  can  it  be  doubted  that,  if  the  state 
constitution  does  not  prohiV)it,  the  legislature,  speaking  generally, 
may  create  a  new  taxing  district,  determine  what  territory  shall 
belong  to  such  district  and  what  property  shall  be  considered  as 
benefited  by  a  proposed  improvement." 

But  the  power  of  the  legislature  in  these  matters  is  not  unliinited. 
There  is  a  point  beyond  which  the  legislative  department,  even 
when  exerting  the  power  of  taxation,  may  not  go  consistently  with 
the  citizen's  right  of  property.     As  already  indicated,  the  principle 
underlying  special  assessments  to  meet  the  cost  of  pubhcimjoroye- 
meiitsisthat  the  propertyupon  which  thexaiiiiiiy)Frd  is  ppcilikll^ 
benefited,  and  therefore  the  owTiers  donot,  infact,  pay  anything 
■\r^  PVPPss  of'  whart!iey"'receive  bv  reason  ot  such"  improvement. 
BuFEEeguarantiesfor  the  protection  of  private  property  would  be 
seriously  impaired,  if  it  were  established  as  a  rule  of  constitutional 
law,  that  the  imposition  by  the  legislature  upon  particular  private 
property  of  the  entire  cost  of  a  public  improvement,  irrespective 
of  any  peculiar  benefits  accruing  to  the  owner  from  such  improve- 
ment, could  not  be  questioned  by  him  in  the  courts  of  the  country. 
It  is  one  thing  for  the  legislature  to  prescribe  it  as  a  general  rule 
that  property  abutting  on  a  street  opened  by  the  public  shall  be 
deemed  to  have  been  specially  benefited  by  such  improvement,  and 
therefore  should  specially  contribute  to  the  cost  incurred  by  the 
public.     It  is  quite  a  different  thing  to  lay  it  down  as  an  absolute 


NORWOOD    V.    BAKER.  779 

rule  that  such  property,  whether  it  is  in  fact  benefited  or  not  by  the 
opening  of  the  street,  may  be  assessed  by  the  front  foot  for  a  fixed 
sum  representing  the  whole  cost  of  the  improvement,  and  without 
any  right  in  the  property  owTier  to  show,  when  an  assessment  of 
that  kind  is  made  or  is  about  to  be  made,  that  the  sum  so  fixed  is  in 
excess  of  the  benefits  received. 

In  our  judgment,  the  exaction  from  the  owner  of  private  prop- 
erty  of  the  cost  of  a  pubhc  improvement  in  substantial  excess  of  flie 
specitil  benefits  accruuia:  to  inm  is,  to  the  extent  oi  sucli  excess,  a 
tivkin^r,  undfM-  flip  Duisc  of  tnxntion.  of  ])rivntp  pronerTv  Tor  public 
imp  ^vitiiqiii  i-fiyi^pcnsation.  We  say  "  substantial  excess,"  because 
exact  eciualilN'  of  taxation  is  not  always  attainable,  and  for  that 
reason  the  excess  of  cost  over  special  benefits,  unless  it  be  of  a 
material  character,  ought  not  to  be  regarded  b}-  a  court  of  equity 
when  its  aid  is  invoked  to  restrain  the  enforcement  of  a  special 
assessment.  .  .  . 

It  will  not  escape  observation  that  if  the  entire  cost  incurred  by  a 
municipal  corporation  in  condemning  land  for  the  purpose  of 
opening  or  extending  a  street  can  be  assessed  back  upon  the  abut- 
ting property,  without  inquiry  in  any  form  as  to  the  special  benefits 
received  by  the  owner,  the  result  will  be  more  injurious  to  the 
owner  than  if  he  had  been  required,  in  the  first  instance,  to  open  the 
street  at  his  own  cost,  without  compensation  in  respect  of  the  land 
taken  for  the  street;  for,  by  opening  the  street  at  his  o^vn  cost,  he 
might  save  at  least  the  expense  attending  formal  proceedings  of 
condemnation.  It  cannot  be  that  any  such  result  is  consistent 
with  the  principles  upon  which  rests  the  power  to  make  special 
assessments  upon  property  in  order  to  meet  the  expense  of  public 
improvements  in  the  vicinity  of  such  property.  .  .  . 

It  is  said  that  a  court  of  equity  ought  not  to  interpose  to  prevent 
the  enforcement  of  the  assessment  in  question,  because  the  plaintiff 
did  not  show  nor  offer  to  show  by  proof  that  the  amount  assessed 
upon  her  property  was  in  excess  of  the  special  benefits  accruing  to 
it  by  reason  of  the  opening  of  the  street.  This  suggestion  implies 
that  if  the  proof  had  showed  an  excess  of  cost  incurred  in  opening 
the  street  over  the  special  benefits  accruing  to  the  abutting  prop- 
erty, a  decree  might  properly  have  been  made  enjoinmg  the  assess- 
ment to  the  extent  simply  that  such  cost  exceeded  the  benefits.  We 
do  not  concur  in  this  view.  As  the  pleadings  show,  the  Village 
proceeded  upon  the  theory,  justified  by  the  words  of  the  statute, 
that  the  entire  cost  incurred  in  opening  the  street,  including  the 
value  of  the  property  appropriated,  could,  when  the  assessment 


780  THE   FOURTEENTH   AMENDMENT  AND   TAXATION. 

was  by  the  front  foot,  be  put  upon  the  abutting  property,  irrespec- 
tive of  special  benefits.  The  assessment  was  by  the  front  foot  and 
for  a  specific  sum  representing  such  cost,  and  that  sum  could  not 
have  been  reduced  under  the  ordinance  of  the  Village  even  if  proof 
had  been  made  that  the  costs  and  expenses  assessed  ui)on  the  abut- 
ting property  exceeded  the  special  benefits.  The  assessment  was 
in  itselfan  illeual  one  l>ecause  it  rested  ui)on  a  basisTFiat  ex('luded 
any  consideration  of  Ijcnefits.  A  decree  enjoining  the  whole 
asgeSsment  was  therel'ore  the  only  ai)propriate  one?  .   .   . 

We  have  considered  the  ciuestion  presented  for  our  determination 
with  reference  only  to  the  provisions  of  the  national  Constitu- 
tion. .  .  . 

The  judgment  of  the  Circuit  Court  must  be  affinnc<l  upon  the  ground 
that  the  assessment  against  the  plaintijf's  abutting  property  ivas 
under  a  rule  which  excluded  any  inquiry  as  to  special  benefits, 
and  the  necessary  operation  of  which  was,  to  the  extent  of  the  excess 
of  the  cost  of  opening  the  street  in  question  over  any  special 
benefits  accruing  to  the  abutting  properly  therefrom,  to  take 
private  property  for  public  use  without  compensation;  and  it  is 
so  ordered. 
Brewer,  J.,  dissenting.  .  .  . 
Gray  and  Shiras,  J  J.,  also  dissented. 


UNION   REFRIGERATOR  TRANSIT   CO.   v. 
KENTUCKY. 

Supreme  Court  of  the  United  States.     1905. 
.[199  United  States,  194.] 

Error  to  the  Court  of  Appeals  of  Kentucky. 

This  proceeding  was  begun  by  a  statement  filed  by  the  revenue 
agent  of  the  Commonwealth  in  the  Jefferson  County  Court,  pray- 
ing that  certain  personal  property  belonging  to  the  plaintiff  in  error 
be  assessed  for  taxation  for  state,  county  and  municipal  taxes,  and 
be  also  adj  udged  to  pay  a  penalty  of  twenty  per  cent  on  the  aggre- 
gate amount  of  the  tax. 

To  this  statement  the  Transit  Company  filed  certain  demurrers 
and  answers,  upon  which,  and  upon  the  deposition  of  the  controller 


UNION   REFRIGERATOR   TRANSIT    CO.    V.    KENTUCKY.  781 

of  the  company  in  St.  Louis,  Missouri,  the  case  went  to  a  hearing, 
and  resulted  in  a  finding  of  facts  that  the  Transit  Company  was  the 
owTier  of  two  thousand  cars  in  September,  1897,  1898,  1899  and 
1900,  to  which  years  the  recovery  was  limited,  of  the  value  of  S200 
each;  that  its  cars  were  employed  by  the  company  by  renting 
them  to  shippers,  who  took  possession  of  them  from  time  to  time  at 
^Milwaukee,  Wisconsin,  and  used  them  for  the  carriage  of  freight  in 
the  United  States,  Canada  and  Mexico,  the  company  being  paid  by 
the  railroads  in  proportion  to  the  mileage  made  over  their  lines; 
that  the  correct  method  of  ascertaining  the  number  of  cars  which 
should  be  assessed  for  taxation  was  to  ascertain  and  list  such  a  pro- 
portion of  its  cars  as,  under  a  system  of  averages  upon  their  gross 
earnings,  were  shown  to  be  used  in  the  State  of  Kentucky,  during 
the  fiscal  year,  the  court  finding  by  this  method  that  there  were 
subject  to  assessment  in  Kentucky  twenty-eight  cars  for  the  year 
1S97,  twenty-nine  for  the  year  1898,  forty  for  the  year  1899,  and 
sixly-seven  for  1900. 

The  court  also  found  that  the  cars  other  than  those  mentioned 
were  not  liable  to  assessment. 

The  order  of  the  County  Court  was  affirmed  by  the  Circuit 
Court,  and  an  appeal  taken  to  the  Court  of  Appeals  of  Kentucky, 
which  reversed  the  judgment  of  the  court  below,  and  found  that 
the  company  was  liable  to  taxation  upon  its  entire  number  of  two 
thousand  cars,  and  directed  the  court  below  to  enter  judgment 
against  it  for  the  taxes  appropriate  to  this  number.  80  S.  W.  Rep. 
490. 

To  re\iew  this  judgment  this  writ  of  error  was  sued  out. 

W.  H.  Field,  and  another,  for  plaintiff  in  error;  and  H.  L.  Stone 
and  others,  contra. 

Brown,  J.,  after  making  the  foregoing  statement,  delivered  the 
opinion  of  the  court. 

In  this  case  the  question  is  directly  presented  whether  a  corpora- 
tion organized  under  the  laws  of  Kentucky  is  subject  to  taxation 
upon  its  tangible  personal  property,  permanently  located  in  other 
States,  and  employed  there  in  the  prosecution  of  its  business. 
&uch  taxation  is  charged  to  be  a  \iolation  of  the  due  process  of  law 
c!auseof  the  Fourteenth  Amendment. 


Semon  4020  of  the  Kentucky  statutes,  under  which  this  assess- 
ment was  made,  provides  that  "  All  real  and  personal  estate  within 
this  State,  and  all  personal  estate  of  persons  residing  in  this  State, 
and  of  all  corporations  organized  under  the  laws  of  this  State, 
whether  the  property  be  in  or  out  of  this  State,  .  .  .  shall  be  sub- 


782  THE   FOURTEENTH    AMENDMENT  AND   TAXATION. 

ject  to  taxation  unless  the  same  be  exempt  from  taxation  by  tlie 
Constitution,  and  shall  be  assessed  at  its  fair  cash  value,  estimated 
at  the  price  it  would  bring  at  a  fair  voluntary  sale." 

That  the  property  taxed  is  within  this  description  is  l)eyond 
controversy.  The  constitutionality  ofthe  section  was  attacked 
not  only  upon  thefround  that  it  denied  to  the  Transij^C'ompanv 
--dTrCprocess  ona\V,-bttt-tdso  lliu  I'qilaTprotection  of  the  lawsjjnjiiii 
factTHat  railroad  companiesvvere  only  taxed  ui)on  the  value  of 
their  rolling  stock  used  wittim  the  >State,  wliich  was  deterniined  l)y 
tfie  proportion  which  the  number  of  miles  of  the  railro.ad  in  the 
State  bears  to  the  whole  number  of  miles  operated  byjhejjiim- 
-^ny. '^  ^^ 

The  power  of  taxation,  indispensable  to  the  existence  of  every 
civilized  government,  is  exercised  upon  the  assumption  of  an 
equivalent  rendered  to  the  taxpayer  in  the  protection  of  his  person 
and  property,  in  adding  to  the  value  of  such  property,  or  in  the 
creation  and  maintenance  of  public  conveniences  in  which  he  shares, 
such,  for  instance,  as  roads,  bridges,  sidewalks,  pavements,  and 
schools  for  the  education  of  his  children.  ^Jj}}£  taxinii  power  be^i 
no  position  to  render  these  services,  or  otherwise  to  l)eiie(it  th(-_ 
person  or  property  taxed,  and  such  jjiopertv  l)e  ■\v||()llv  i)vif  lijii-i he 
taxing  power  of  anotiier  State,  to  wlncjj  '^  nvy  '"■  '^•■'''  U)  "Mii^ an 
allegiance  and  to  which  it  looks  for  protection,  the  taxation  of  such 
propertv  within  tiic  oomicii  ot  ilie  owner  partakes  ratiier  oflhe 
nature  of  an  extortion  tnan  a  tax,  and  lias  \nyn  r(M)eate(llv  held  Hy 
this  court  to  l)e  beyond  the  j^ower  of  the  legislature  and  a  taking  of 
properTy  -without  due  process  ot  ia\v!  Railroad  Company  v.  Jack- 
son,'? Wall.  262;  State  Tax  on  Foreign-held  Bonds,  15  Wall.  300; 
Tappan  v.  Merchants'  National  Bank,  19  Wall.  490,  499;  Dela- 
ware &c.  R.  R.  Co.  V.  Pennsylvania,  198  U.  S.  341,  358.  .  .  . 

It  is  also  essential  to  the  validity  of  a  tax  that  the  property 
shall  be  wathin  ti^ie  territorial  jurisdiction  of  the  taxing  power.  .  ~.  . 
'TThis  rule  receives  its  most  tamiliar  illustration  in  ine  cases  ot  land 
which,  to  be  taxable,  must  be  within  the  limits  of  the  State. 
Indeed,  we  know  of  no  case  where  a  legislature  has  assumed  to 
impose  a  tax  upon  land  ^^^thin  the  jurisdiction  of  another  State, 
much  less  where  such  action  has  been  defended  by  any  court.  .  .  . 

The  argument  against  the  taxability  of  land  within  the  jurisdic- 
tion of  another  State  appliir'S  vvilh  equal  cogency  to  tangible  per- 
sonal property  beyond  tne  juriscITction.  It  is  not  only  beyoncrthe 
sovereignty  ot  the  taxing  State,  but  does  not  and  carniot  receive 
pfetection  under  its  laws.     True,  a  resident  owner  may  receive  an 


UNION   REFRIGERATOR   TRANSIT    CO.    V.    KENTUCKY.  783 

income  from  such  property,  but  the  same  may  be  said  of  real  estate 
\dthin  a  foreign  jurisdiction.  Whatever  be  the  rights  of  the  State 
with  respect  to  the  taxation  of  such  income,  it  is  clearly  beyond  its 
power  to  tax  the  land  from  which  the  income  is  derived.  As  we 
said  in  Louisville  &c.  Ferry  Co.  v.  Kentucky,  188  U.  S.  385,  396: 
"  While  the  mode,  form  and  extent  of  taxation  are,  speaking 
generally,  limited  only  by  the  wisdom  of  the  legislature,  that  power 
is  limited  by  a  principle  inhering  in  the  very  nature  of  constitutional 
government,  namely,  that  the  taxation  imposed  must  have  relation 
to  a  subject  within  the  jurisdiction  of  the  taxing  government." 
See  also  McCulloch  i*.  Maryland,  4  Wheat.  316,  429;  Hays  v. 
Pacific  Mail  S.  S.  Co.,  17  How.  596,  599;  St.  Louis  v.  Ferry  Co., 
11  Wall.  423,  429,  431;   Morgan  v.  Parham,  16  Wall.  471,  476. 

Respecting  this,  there  is  an  obvious  chstinction  between  the 
tangible  and  intangible  property,  in  the  fact  that  the  latter  is  held 
secretly;  that  there  is  no  method  by  which  its  existence  or  owmer- 
ship  can  be  ascertained  in  the  State  of  its  situs,  except  perhaps  in 
the  case  of  mortgages  or  shares  of  stock.  So  if  the  owner  be  dis- 
covered, there  is  no  way  by  which  he  can  be  reached  by  process  in  a 
State  other  than  that  of  his  domicil,  or  the  collection  of  the  tax 
otherwise  enforced.  In  this  class  of  cases  the  tendency  of  modem 
authorities  is  to  apply  the  maxim  mobilia  sequuntur  personam,  and 
to  hold  tliat  the  property  may  be  taxed  at  the  domicil  of  the  o\vner 
as  the  real  situs  of  the  debt,  and  also,  more  particularly  in  the  case 
of  mortgages,  in  the  State  where  the  property  is  retained.  Such 
havebeen  therepeated  rulingsof  thiscourt.  Tappan  v.  Merchants' 
National  Bank,  19  Wall.  490;  Kirtland  v.  Hotchkiss,  100  U.  S.  491; 
Bonaparte  v.  Tax  Court,  104  U.  S.  592;  Sturges  v.  Carter,  114  U.  S. 
511;  Kidd  v.  Alabama,  188  U.  S.  730;  Blackstone  v.  Miller,  188 
U.  S  189. 

If  this  occasionally  results  in  double  taxation,  it  much  oftener 
happens  that  this  cla.ss  of  property  escapes  altogether.  .  .  . 

The  arguments  in  favor  of  the  taxation  of  intangible  property  at 
the  domicil  of  the  owner  have  no  application  to  tangible  property f 
The  fact  that  such  propertv  is  \nsible.  easilv  found  and  difficult  to 
conceal,  and  the  tax  rendilv  rolloctible.  is  so  cogent  nn  nmimpnt 

for  its  taxation  at  its  situs,  tt^jlt  of  |;^to  \h(^rf^  \^  a  p-onpral  rnnspnsi^f; 

^>f  r>p;,.w>r.  ihni  if  i^  tnvnV^lo  in  ihn  RtntP  whprp  jt  is  permanently 
](^f■:^i,'(\  mtkI  pm]^l(n-f^j  i\\\(\  where  it  receives  its  entire  protection, 
irr^snoctivf  of  tho  domicil  of  the  owTier.  We  have,  ourselves,  held 
in  a  number  of  cases  that  such  property  permanently  located  in  a 
State  other  than  that  of  its  owner  is  taxable  there.      Brown  v. 


784  THE    FOURTEENTH    AMENDMENT    AND    TAXATION. 

Houston,  114  U.  S.  022;  Coe  v.  Errol,  116  U.  S.  517;  Pulhnun's 
Car  Co.  V.  Pennsylvania,  141  U.  S.  18;  Western  Union  Telegraph 
Co.  V.  Massachusetts,  125  U.  S.  530;  Railroad  Company  v.  Penis- 
ton,  18  Wall.  5;  American  Refrigerator  Transit  Company  v.  Hall, 
174  U.  S.  70;  Pittsburg  Coal  Company  v.  Bates,  156  U.  S.  577; 
Old  Dominion  Steamship  Company  v.  Virginia,  198  U.  S.  299.  We 
have  also  held  that,  i£a  corporation  be  engaged  in  running  railroad 
cars  into,  through  and  out  of  the  State,  and  having  at  all  times  a 
laTgenumbel  Ol'l'tlis  uilliiu  Ihr  Olaii,  it  iii;t>  JH;_lit.u'd  liv  I'lklhgtis 
a  basis  of  assessment  such  proDortion  of  its  capital  stock  as  the 
number  of  miles  of  railroad  over  wiiich  its  curs  nrv  run  within  tTu' 
State  bears  to  the  whole  iniinbcr  (;)f  miles  in  .•ill  flic  Stntcs  over  wlpch 
its  cars  are  run.  Pullman's  Car  Co.  v.  Pennsylvania,  141  U.  S. 
18.  .  .  . 

Our  conclusion  upon  this  branch  of  the  case  renders  it  unneces- 
sary to  decide  the  second  question,  viz:  Wliether  the  Transit 
Company  was  denied  the  equal  protection  of  the  laws. 

It  is  unnecessary  to  say  that  this  case  does  not  involve  the  ques- 
tion of  the  taxati(jn  of  intangii)le  personal  property,  or  of  inheri- 
tance or  succession  taxes,  or  of  questions  arising  between  different 
municipalities  or  taxing  districts  witiiin  the  same  State,  which  are 
controlled  by  different  considerations. 

We  are  of  opinion  that  the  cars  in  ciuestion,  so  far  as  thev  were 
located  and  -emjiloyed  in  other  States  than  Kentucky,  were  r^ot 
subject  to  the  tnxinjy  p^uvcr  nf  tlnq^ 'oninumwealth.  and  that  the 
judgment  of  the  Court  of  Appcnls  must  l)er(;  versed,  and  ihe  case 
remanded  to  that  court  for  fiirtlu>r  ]^rocpoflinfi;s  not  inconsistent 
witli  this  o^iaJQJi" 

White,  J.,  concurred  in  the  result. 

Holmes,  J.  It  seems  to  me  that  the  result  reached  by  the 
court  probably  is  a  desirable  one,  but  I  hardly  understand  how  it 
can  be  deduced  from  the  Fourteenth  Amendment,  and  as  the  Chief 
Justice  feels  the  same  difficulty,  I  think  it  proper  to  say  that  my 
doubt  has  not  been  removed. 

1  Compare  New  York,  ex  rel.  N.  Y.  C.  &  H.  R.  R.  Co.,  v.  Miller,  202  U.  S. 
584  (1906);  and  United  States  v.  Bennett,  232  U.  S.  299  (1914).  —  Ed. 


QUONG   WING    V.    KIRKENDALL.  785 

QUONG  WING  V.   KIRKENDALL. 

Supreme  Court  of  the  United  States.     1912. 

[223  United  States,  59.]  ^ 

Error  to  the  Supreme  Court  of  Montana. 

Action  was  brought  to  recover  from  Kirkendall,  treasurer  of 
Lewds  and  Clark  County,  a  fee  paid  for  a  three  months'  Ucense  to 
do  hand  laundry  work;  andjudgment  for  the  plaintiff  was  reversed 
hy  fhp_Siipreme  Court  of  ^Montana. 

C.  E.  Pew  antl  others,  for  plaintiff  in  error;  and  W.  H.  Poorman 
and  another,  contra. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  ten  dollars  paid  under  duress  and 
protest  for  a  license  to  do  hand  laundry  work.  The  plaintiff  got 
judgment  in  the  court  of  first  instance,  but  this  judgment  was 
reversed  by  the  Supreme  Court  of  the  State.  39  Montana,  64. 
The  law  under  which  the  fee  was  exacted  imposed  the  payment 
upon  alTpcrsons  engaged  in  laundry  business  otherjhan  the  steam 
iMMnTlrv  business,  with  a  proviso  that  it  snould  not  apply  to  women 
so  engaged  where  not  more  than  two  women  were  employed.  1 
Rev.  Codes,  §  2776.  The  only  question  is  whether  this  is  an  un- 
constitutional discrimination  deprivingthe  plaintiff  of  the_equar 
protectiun^of  the  laws.      L .  ^?.  Const.,  Am.  XI V.  '        ^ 

The  ca7e  was  argued  upon  the  discrimination  between  the  in- 
strumentalities employed  in  the  same  ])usiness  and  that  between 
men  and  women.  One  like  the  former  was  held  bad  in  In  re  Yot 
Sang,  75  Fed.  Rep.  983,  and  while  the  latter  was  spoken  of  by  the 
Supreme  Court  of  the  State  as  an  exemption  of  one  or  two  women, 
it  is  to  be  observed  that  in  1900  the  census  showed  more  women 
than  men  engaged  in  hand  laundry'  work  in  that  State.  Never- 
theless we  agree  vath  the  Supreme  Court  of  the  State  so  far  as 
these  grounds  are  concerned.  A  State  does  not  deny  the  equal 
protection  of  the  laws  merely  by  adjusting  its  revenue  laws  and 
taxing  system  in  sil(^h  &  waV  iJM  iJ-fTTTor  certanTindustries  or  forms 
of  industry.  Llkfe-  llib  Uillll^l  blales,  although  with  more  restnc- 
tion  and  in  less  degree,  a  State  may  carry^  out  a  policy,  even  a 
policy  wth  which  we  might  disagree.  McLean  v.  Arkansas,  211 
U.  S.  539,  547.  Armour  Packing  Co.  v.  Lacy,  200  U.  S.  226,  235. 
Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  562.  Itma^ 
make  discriminations,  if  founded  on  distinctions  that  we  cannot 

1  The  reporter's  statement  has  been  omitted.  —  Ed. 


786  THE    FOURTEENTH    AMENDMENT    AND    TAXATION. 

prnnounco  unrcasoutthlt'  iind  purely  arbitrary,  ns  was  illu.strated  in 
American  Sugar  Refining  Co.  v.  Louisiana,  179  U.  S.  89,  92,  95; 
Williams  v.  Fears,  179  U.  S.  270,  276;  W.  W.  Cargill  Co.  v.  Minne- 
sota, 180  U.  S.  452,  469.  It  may  favor  or  discourage  the  liquor 
traffic,  or  trusts.  The  criminal  law  is  a  whole  body  of  policy  on 
which  States  may  and  do  differ.  If  the  State  sees  fit  to  ent-ourage 
steam  laundries  and  discourage  hand  laundries  that  is  its  own 
affairl     And  if  again  it  finds  a  ground  of  (hstuiction  ui  sex^  that,  is 


not~without  precedentT  It  has  l)een  recognized  with  regard  to 
hours  of  work. — Mull  IT  r.  Oregon,  208  U.  S.  412.  It  is  recognized 
in  the  respective  rights  of  husband  and  wife  in  land  during  life, 
in  the  inheritance  after  the  deatii  of  the  spouse.  Often  it  is  ex- 
pressed in  the  time  fixed  for  coming  of  age.  If  Montana  deems 
it  advisable  to  put  a  lighter  burden  upon  women  than  ujxm  men 
with  regard  to  an  emplojTnent  that  our  people  commonly  regard 
as  more  appropriate  for  the  former,  thejujurteenth  Amendment 
does  not  interfere  l)y  creating  a  fictitious  e(iua[ity~wlicrc  t  here  i^ a 
real  difference.  The  particulaijjoiijlsjilj^ij[TcT^  dilTcivnco  sliall 
be  emphasized  by  legislation  arc  largely  in  the  inTwcr  ot  the  ^^tate. 
Another  difficulty  suggested  by  the  statute  is  that  it  is  impossible 
not  to  ask  whether  it  is  not  aimed  at  the  Chinese;  which  would  be 
a  discrimination  that  the  Constitution  does  not  allow.  Yick  Wo 
V.  Hopkins,  118  U.  S.  356.  It  is  a  matter  of  common  observation 
that  hand  laundry  work  is  a  widespread  occupation  of  Chinamen 
in  this  country  while  on  the  other  hand  it  is  so  rare  to  see  men  of 
our  race  engaged  in  it  that  many  of  us  would  be  unable  to  say  that 
they  ever  had  observed  a  case.  But  this  ground  of  objection  was 
not  urged  and  rather  was  disclaimed  when  it  was  mentioned  from 
the  Bench  at  the  argument.  It  may  or  may  not  be  that  if  the  facts 
were  called  to  our  attention  in  a  proper  way  the  objection  would 
prove  to  be  real.  But  even  if  when  called  to  our  attention  the 
facts  should  be  taken  notice  of  judicially,  whether  because  they  are 
only  the  premise  for  a  general  proposition  of  law,  Prentis  v.  At- 
lantic Coast  Line  Co.,  211  U.  S.  210,  227,  South  Ottawa  v.  Perkins, 
94  U.  S.  260,  Telfair  v.  Stead,  2  Cranch,  407,  418,  or  for  any  other 
reason,  still  there  are  many  things  that  courts  would  notice  if 
brought  before  them  that  beforehand  they  do  not  know.  It  rests 
with  counsel  to  take  the  proper  steps,  and  if  they  deliberately  omit 
them,  we  do  not  feel  called  upon  to  institute  inquiries  on  our  o\mi 
account.  Laws  frequently  are  enforced  which  the  court  recog- 
nizes as  possibly  or  probably  invalid  if  attacked  by  a  different 
interest  or  in  a  different  way.     Therefore  without  prejudice  to  the 


QUONG    WING    V.    KIRKENDALL.  787 

question  that  we  have  suggested,  when  it  shall  be  raised,  we  must 
conclude  that  so  far  as  the  present  case  is  concerned  the  judgment 
must  be  aflfirmed. 

Judgment  affirmed. 

Hughes,  J.,  concurs  in  the  result. 

Lamar,  J.,  dissenting. 

I  dissent  from  the  conclusions  reached  in  the  first  branch  of  the 
opinion,  becau.se,  in  my  judgnent,  the  statute  which  is  not  a  police 
but  a  revenue  measure  maTccs"an  arbitrary  discrimmation.  It 
"taxes  some  and  exempts  others  en^nged  in  iflpnticallv  the  sniriR 
business.  It  does  not  graduate  the  license  so  that  those  doing  a 
largevolume  of  business  pay  more  than  those  doing  less.  On  the 
contrary',  it  exempts  the  large  business  and  taxes  the  small.  It 
exempts  the  business  that  is  so  large  as  to  require  the  use  oT  steam, 
and  taxes  that  which  is  so  small  that  it  can  be  run  by  hand.  Among 
these  small  operators  there  is  a  further  discrimination,  based  on 
sex.  It  would >e  just  as  competent  to  tax  the  property  of  men  and 
exempt  that  of  women.  The  individual  characteristics  of  the 
owner  do  not  furnish  a  basis  on  which  to  make  a  classification  for 
purposes  of  taxation.  It  is  the  property  or  the  bu.siness  which  is  to 
be  taxed,  regardless  of  the  qualities  of  the  owner.  A  discrimination 
founded  on  the  personal  attributes  of  iho^a  engaged  iTPTlie  same 
occupation  and  not  on  the  value  or  the  amount  ot  the  busmess 
is  arbitrary.  "  A  cla.ssiticatKjn  must  always  rest  upon  some  dif- 
fej;iun:i;wliich  bears  a  rea.^onablo  and  just  relation  to  the  act  m 
respf^rt    t«>    \\\\u-\\    flip    r-JMssifioMtinn    i>;    prnp^^pd  "        Connolly    V. 

Union  Sewer  Pipe  Co.,  184  U.  S.  560. 


CHAPTER  III. 

THE   FIFTEENTH   AMENDMENT. 

UNITED   STATES   r.   REESE. 

Supreme  Court  of  the  United  States.     1876. 

[92  UnUed  States,  214.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Kentucky. 

Williains,  Attorney  General,  and  Phillips,  SoHcitor  General,  for 
the  United  States;  and  H.  Stanbcnj  and  Ji.  F.  Buckner,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  here  by  reason  of  a  division  of  opinion  between 
the  judges  of  the  Circuit  Court  in  the  District  of  Kentucky.  It 
presents  an  indictment  containing  four  counts,  under  sects.  3  and  4 
of  the  act  of  May  31,  1870  (16  Stat.  140),  against  two  of  the  in- 
spectors of  a  municipal  election  in  the  State  of  Kentucky,  for 
refusing  to  receive  and  count  at  such  election  the  vote  of  William 
Garner,  a  citizen  of  the  United  States  of  African  descent.  All  the 
questions  presented  by  the  certificate  of  division  arose  upon  general 
demurrers  to  the  several  counts  of  the  indictment. 

In  this  court  the  United  States  abandon  the  first  and  third 
counts,  and  expressly  waive  the  consideration  of  all  claims  not  aris- 
ing out  of  the  enforcement  of  the  Fifteenth  Amendment  of  the 
Constitution. 

After  this  concession,  the  principal  question  left  for  considera- 
tion is,  whether  the  act  under  which  the  indictment  is  found  can  be 
made  effective  for  the  punishment  of  inspectors  of  elections  who 
refuse  to  receive  and  count  the  votes  of  citizens  of  the  United 
States,  having  all  the  qualifications  of  voters,  because  of  their 
race,  color,  or  previous  condition  of  servitude.  .  .  . 

The  second  count  in  the  indictment  is  based  upon  the  fourth 
section  of  this  act,  and  the  fourth  upon  the  third  section. 

Rights  and  immunities  created  by  or  dependent  upon  the  Con- 
stitution of  the  United  States  can  be  protected  by  Congress.  The 
form  and  the  manner  of  the  protection  may  be  such  as  Congress,  in 
the  legitimate  exercise  of  its  legislative  cUscretion,  shall  provide. 

788 


UNITED  STATES  V.    REESE.  789 

These  may  be  varied  to  meet  the  necessities  of  the  particular  right 
to  be  protected. 

The  Fifteenth  Amendment  does  not  confer  the  right  of  suffrage 
upon  any  one.  It  prevents  the  States,  or  the  United  States,  how- 
ever, from  giving  preference,  in  this  particular,  to  one  citizen  of  the 
United  States  over  another  on  account  of  race,  color,  or  previous 
condition  of  servitude.  Before  its  adoption,  this  could  be  done. 
It  was  as  much  within  the  power  of  a  State  to  exclude  citizens  of  the 
United  States  from  voting  on  account  of  race,  &c.,  as  it  was  on 
account  of  age,  property,  or  education.  Now  it  is  not.  If  citizens 
of  one  race  having  certain  quiilifications  are  permitted  by  law  to 
vote,  those  of  another  having  the  same  qualifications  must  be. 
Previous  to  this  amendment,  there  was  no  constitutional  guaranty 
against  this  discrimination:  now  there  is.  It  follows  that  the 
amendment  has  invested  the  citizens  of  the  United  States  with  a 
new  constitutional  right  which  is  within  the  protecting  power  of 
Congress.  That  right  is  exemption  from  discrimination  in  the 
exercise  of  the  elective  franchise  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude.  This,  under  the  express  provisions 
of  the  second  section  of  the  amendment.  Congress  may  enforce  by 
"  appropriate  legislation." 

This  leads  us  to  inquire  whether  the  act  now  under  consideration 
is  "  appropriate  legislation  "  for  that  purpose.  The  power  of 
Congress  to  legislate  at  all  upon  the  subject  of  voting  at  State 
elections  rests  upon  this  amendment.  The  effect  of  art.  1,  sect.  4, 
of  the  Constitution,  in  respect  to  elections  for  senators  and  repre- 
sentatives, is  not  now  under  consideration.  It  has  not  been  con- 
tended, nor  can  it  be,  that  the  amendment  confers  authority  to 
impose  penalities  for  ever\'  wrongful  refusal  to  receive  the  vote  of  a 
(jualified  elector  at  State  elections.  It  is  only  when  the  WTongful 
refusal  at  such  an  election  is  because  of  race,  color,  or  previous 
condition  of  servitude,  that  Congress  can  interfere,  and  provide  for 
its  punishment.  If,  therefore,  the  third  and  fourth  sections  of  the 
act  are  beyond  that  limit,  they  are  unauthorized.  .  .  . 

The  language  of  the  third  and  fourth  sections  does  not  confine 
their  operation  to  unlawful  discriminations  on  account  of  race,  &c. 
If  Congress  had  the  power  to  provide  generally  for  the  punish- 
ment of  those  who  unlawfully  interfere  to  prevent  the  exercise  of 
the  elective  franchise  without  regard  to  such  discrimination,  the 
language  of  these  sections  would  be  broad  enough  for  that  purpose. 

It  remains  now  to  consider  whether  a  statute,  so  general  as  this 
in  its  pro\'isions,  can  be  made  available  for  the  punishment  of 


790  THE   FIFTEENTH   AMENDMENT. 

those  who  may  be  guilty  of  unla\vf  ul  discrimination  against  citizens 
of  the  United  States,  while  exercising  the  elective  franchise,  on 
account  of  their  race,  &c. 

There  is  no  attempt  in  the  sections  now  under  consideration  to 
provide  specifically  for  such  an  offense.  If  the  case  is  provided  for 
at  all,  it  is  because  it  comes  umler  the  general  prohibition  against 
any  wrongful  act  or  unlawful  obstruction  in  this  particular.  We 
are,  therefore,  directly  called  upon  to  decide  whether  a  penal  statute 
enacted  by  Congress,  with  its  limited  i)owers,  which  is  in  general 
language  broad  enough  to  cover  wrongful  acts  without  as  well  as 
within  the  constitutional  jurisdiction,  can  be  limited  by  judicial 
construction  so  as  to  make  it  operate  only  on  that  which  Congress 
may  rightfully  prohiljit  and  punish.  For  this  purpose,  we  must 
take  these  sections  of  the  statute  as  they  are.  We  are  not  able  to 
reject  a  part  which  is  unconstitutional,  and  retain  the  remainder, 
because  it  is  not  possible  to  separate  that  which  is  unconstitu- 
tional, if  there  be  any  such,  from  tliat  which  is  not.  The 
proposed  effect  is  not  to  be  attained  by  striking  out  or  disregarding 
words  that  are  in  the  section,  but  by  inserting  those  that  are  not 
now  there.  Each  of  the  sections  must  stand  as  a  whole,  or  fall 
altogether.  The  language  is  plain.  There  is  no  room  for  construc- 
tion, unless  it  be  as  to  the  effect  of  the  Constitution.  The  question, 
then,  to  be  determined,  is,  whether  we  can  introduce  words  of 
limitation  into  a  penal  statute  so  as  to  make  it  specific,  when,  as 
expressed,  it  is  general  only. 

It  would  certainly  be  dangerous  if  the  legislature  could  set  a  net 
large  enough  to  catch  all  possible  offenders,  and  leave  it  to  the 
courts  to  step  inside  and  say  who  could  be  rightfully  detained,  and 
who  should  be  set  at  large.  This  would,  to  some  extent,  substitute 
the  judicial  for  the  legislative  department  of  the  government. 
The  courts  enforce  the  legislative  will  when  ascertained,  if  within 
the  constitutional  grant  of  power.  Within  its  legitimate  sphere. 
Congress  is  supreme,  and  beyond  the  control  of  the  courts;  but  if 
it  steps  outside  of  its  constitutional  limitations,  and  attempts  that 
which  is  beyond  its  reach,  the  courts  are  authorized  to,  and  when 
called  upon  in  due  course  of  legal  proceedings  must,  annul  its 
encroachments  upon  the  reserved  power  of  the  States  and  the 
people. 

To  limit  this  statute  in  the  manner  now  asked  for  would  be  to 
make  a  new  law,  not  to  enforce  an  old  one.  This  is  no  part  of  our 
duty. 


UNITED    STATES   V.    REESE.  791 

We  must,  therefore,  decide  that  Congress  has  not  as  yet  pro- 
vided by  "  appropriate  legislation  "  for  the  punishment  of  the 
offense  charged  in  the  indictment;  and  that  the  Circuit  Court 
properly  sustained  the  demurrers,  and  gave  judgment  for  the 
defendants.^  .  .  . 

Clifford,  J.,  I  concur  that  the  indictment  is  bad,  but  for 
reasons  widely  different  from  those  assigned  by  the  court. 

Hunt,  J.  I  am  compelled  to  dissent  from  the  judgment  of  the 
court.  .  .  . 

»  See  Neal  v.  Delaware,  103  U.  S.  370  (1881);  Ex  parte  Yarbrough  110 
U.  S.  651  (1884);  Giles  v.  Harris,  189  U.  S.  475  (1903);  James  v.  Bowman  190 
U.  S.  127  (1903);  Giles  v.  Teasley,  193  U.  S.  146  (1904);  and  Hodges  v.  uiited 
States,  203  U.  S.  1  (1906).  —  Ed. 


CASES  ON  CONSTITUTIONAL  LAW 


BOOK  IV. 

SOME  PROVISIONS  PROMOTING  NATIONALISM. 


CHAPTER  I. 


EXPRESS  PROVISIONS  ON  STATE  AND  NATIONAL 
TAX^VTION. 

HYLTON   V.   UNITED   STATES. 
Supreme  Court  of  the  United  States.     1796. 

[i  Dallas,  171.]  > 
Error  to  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  Virginia,  in  which  court  the  United  States  had  brought 
an  action  of  debt  to  recover  from  Hylton  the  penalty  imposed  by 
the  act  of  Congress  of  June  5,  1794  (1  U.  S.  Stat.  373).  The 
statute  enacted  "That  there  shall  be  le\ned  .  .  .  upon  all  car- 
riages for  the  conveyance  of  persons,  which  shall  be  kept  by  or 
for  any  person,  for  his  .  .  .  o^ti  use,  or  to  be  let  out  to  hire,  or 
for  the  conve3'ing  of  passengers,  the  several  duties  and  rates  fol- 
lowing, to  wit :  For  and  upon  every  coach,  the  yearly  sum  of  ten 
dollars;  .  .  .  every  chariot,  .  .  .  eight  dollars;  .  .  .  every  phae- 
ton and  coachee,  six  dollars;  .  .  .  every  other  four  wheel,  and 
every  two  wheel  top  carriage,  two  dollars;  .  .  .  every  other  two 
wheel  carriage,  one  dollar.  Provided  always,  That  nothing  herein 
contained  shall  be  construed  to  charge  \^'ith  a  duty,  any  carriage 
usually  and  chiefly  employed  in  husbandry',  or  for  the  transport- 
ing or  carrying  of  goods.  ..."  For  breach  there  was  a  penalty 
equal  to  the  duty  payable.  The  parties  waived  a  jury  and  sub- 
mitted the  case  under  an  agreement  that  the  defendant  owned 
and  kept  "  one  hundred  and  twenty-five  chariots,  for  the  con- 

1  The  reporter's  statement  has  not  been  reprinted. — Ed. 

793 


794  EXPRESS   PROVISIONS   OX   TAXATION. 

veyance  of  persons,  and  no  more;  that  the  chariots  were  kept  ex- 
clusively for  the  defendant's  owii  private  use,  and  not  to  he  let 
out  to  hire,  or  for  the  conveyance  of  persons  for  hire;"  and  that 
the  defendant  had  refused  to  pay  the  duty  on  the  ground  that 
the  statute  was  unconstitutional.  It  was  agreed  that  if  the  court 
adjudged  the  defendant  liable,  "then  judgment  shall  be  en- 
tered for  the  plaintiff  for  $2000,  to  be  discharged  by  the  payment 
of  $16,"  the  amount  of  the  duty  and  penalty  for  one  chariot; 
"otherwise,  that  judgment  be  entered  for  the  defendant."  The 
court,  consisting  of  Wilson  and  Griffith,  JJ.,  being  evenly 
divided,  the  defendant,  by  agreement,  confessed  judgment  as 
foundation  for  a  wTit  of  error  to  test  the  constitutionality  of  the 
statute. 

Lee,  Attorney  General,  and  Hamilton,  for  the  United  States; 
and  Campbell  and  Ingersoll,  contra. 

Chase,  J.^  .  .  .  The  principles  laid  dowTi,  to  prove  the  above 
law  void,  are  these:  That  a  tax  on  carriages,  is  a  direct  tax,  and, 
therefore,  by  the  Constitution,  must  be  laid  according  to  the 
census,  directed  by  the  Constitution  to  be  taken,  to  ascertain  the 
number  of  Representatives  from  each  State:  And  that  the  tax  in 
question,  on  carriages,  is  not  laid  by  that  rule  of  apportionment, 
but  by  the  rule  of  uniformity,  prescribed  by  the  Constitution,  in 
the  case  of  duties,  imposts,  and  excises;  and  a  tax  on  carriages,  is 
not  within  either  of  those  descriptions.   .   .   . 

As  it  was  incumbent  on  the  plaintiff's  counsel  in  error,  so  they 
took  great  pains  to  prove,  that  the  tax  on  carriages  was  a  direct 
tax;  but  they  did  not  satisfy  my  mind.  I  think,  at  least,  it  may 
be  doubted;  and  if  I  only  doubted,  I  should  affirm  the  judgment 
of  the  Circuit  Court.  The  deliberate  decision  of  the  National 
Legislature  (who  did  not  consider  a  tax  on  carriages  a  direct  tax, 
but  thought  it  was  within  the  description  of  a  duty)  would  de- 
termine me,  if  the  case  was  doubtful,  to  receive  the  construction 
of  the  Legislature:  But  I  am  inclined  to  think,  that  a  tax  on  car- 
riages is  not  a  direct  tax,  within  the  letter,  or  meaning,  of  the 
Constitution. 

The  great  object  of  the  Constitution  was,  to  give  Congress  a 
power  to  lay  taxes,  adequate  to  the  exigencies  of  government; 
but  they  were  to  observe  two  rules  in  imposing  them,  namely, 
the  rule  of  uniformity,  when  they  laid  duties,  imposts,  or  excises; 

^  The  Chief  Justice,  Ellsworth,  was  sworn  into  office  in  the  morning; 
but  not  having  heard  the  whole  of  the  argument  he  declined  taking  any  part 
in  the  decision  of  this  cause.  —  Rep. 


HTLTON   V.    UNITED   STATES.  795 

and  the  rule  of  apportionment,  according  to  the  census,  when 
they  laid  any  direct  tax. 

If  there  are  any  other  species  of  taxes  that  are  not  direct,  and 
not  included  within  the  words  duties,  imposts,  or  excises,  they 
may  be  laid  by  the  rule  of  uniformity,  or  not;  as  Congress  shall 
think  proper  and  reasonable.  If  the  framers  of  the  Constitu- 
tion did  not  contemplate  other  taxes  than  direct  taxes,  and  duties, 
imposts,  and  excises,  there  is  great  inaccuracy  in  their  language. 
—  If  these  four  species  of  taxes  were  all  that  were  meditated, 
the  general  power  to  lay  taxes  was  unnecessary.  .  .  . 

The  Constitution  evidently  contemplated  no  taxes  as  direct 
taxes,  but  only  such  as  Congress  could  lay  in  proportion  to  the 
census.  The  rule  of  apportionment  is  only  to  be  adopted  in  such 
eases  where  it  can  reasonably  apply;  and  the  subject  taxed,  must 
ever  determine  the  application  of  the  rule. 

If  it  is  proposed  to  tax  any  specific  article  by  the  rule  of  appor- 
tionment, and  it  would  evidently  create  great  inequality  and  in- 
justice, it  is  unreasonable  to  say,  that  the  Constitution  intended 
such  tax  should  be  laid  by  that  rule. 

It  appears  to  me,  that  a  tax  on  carriages  cannot  be  laid  by  the 
rule  of  apportionment,  without  very  great  inequality  and  injus- 
tice. For  example:  Suppose  two  States,  equal  in  census,  to  pay 
880,000  each,  by  a  tax  on  carriages,  of  S8  on  every  carriage; 
and  in  one  State  there  are  100  carriages,  and  in  the  other 
1000.  The  owners  of  carriages  in  one  State,  would  pay  ten  times 
the  tax  of  ouTiers  in  the  other.  A.  in  one  State,  would  pay  for 
his  carriage  §8,  but  B.  in  the  other  State,  would  pay  for  his  car- 
riage, $80. 

It  was  argued,  that  a  tax  on  carriages  was  a  direct  tax,  and 
might  be  laid  according  to  the  rule  of  apportionment,  and  (as  I 
understood)  in  this  manner:  Congress,  after  determining  on  the 
gross  sum  to  be  raised  was  to  apportion  it,  according  to  the  cen- 
sus, and  then  lay  it  in  one  State  on  carriages,  in  another  on  horses, 
in  a  third  on  tobacco,  in  a  fourth  on  rice;  and  so  on.  —  I  admit 
that  this  mode  might  be  adopted,  to  raise  a  certain  sum  in  each 
State,  according  to  the  census,  but  it  would  not  be  a  tax  on  car- 
riages, but  on  a  number  of  specific  articles;  and  it  seems  to  me, 
that  it  would  be  liable  to  the  same  objection  of  abuse  and  oppres- 
sion, as  a  selection  of  any  one  article  in  all  the  States. 

I  think,  an  annual  tax  on  carriages  for  the  conveyance  of  per- 
sons, may  be  considered  as  within  the  power  granted  to  Con- 
gress to  lay  duties.     The  term  duty,  is  the  most  comprehensive 


796  EXPRESS   PROVISIONS   ON   TAXATION. 

next  to  the  generical  term  tax;  and  practically  in  Great  Britain 
(whence  we  take  our  general  ideas  of  taxes,  duties,  imposts,  ex- 
cises, customs,  &c.),  embraces  taxes  on  stamps,  tolls  for  passage, 
&c.  &c.  and  is  not  confined  to  taxes  on  importation  only. 

It  seems  to  me,  that  a  tax  on  expense  is  an  indirect  tax;  and 
I  think,  an  annual  tax  on  a  carriage  for  the  conveyance  of  per- 
sons, is  of  that  kind;  because  a  carriage  is  a  consumable  com- 
modity; and  such  annual  tax  on  it,  is  on  the  expense  of  the  ownier. 

I  am  inclined  to  think,  but  of  this  I  do  not  give  a  judicial 
opinion,  that  the  direct  taxes  contemplated  by  the  Coast itu- 
tion,  are  only  two,  to  wit,  a  capitation,  or  poll  tax,  simply,  with- 
out regard  to  property,  profession,  or  any  other  circumstance; 
and  a  tax  on  land.  —  I  doubt  whether  a  tax,  by  a  general  as- 
sessment of  personal  property,  within  the  United  States,  is  in- 
cluded within  the  term  direct  tax. 

As  I  do  not  think  the  tax  on  carriages  is  a  direct  tax,  it  is  un- 
necessary, at  this  time,  for  me  to  determine,  whether  this  court, 
constitutionally  possesses  the  power  to  declare  an  act  of  Con- 
gress void,  on  the  ground  of  its  being  made  contrary  to,  and  in 
violation  of,  the  Constitution;  but  if  the  court  have  such  power, 
I  am  free  to  declare,  that  I  will  never  exercise  it,  ])ut  in  a  very 
clear  case. 

I  am  for  affirming  the  judgment  of  the  Circuit  Court. 

Paterson,  J.  .  .  .  What  are  direct  taxes  within  the  meaning 
of  the  Constitution?  The  Constitution  declares,  that  a  capita- 
tion tax  is  a  direct  tax;  and,  both  in  theory  and  practice,  a  tax 
on  land  is  deemed  to  be  a  direct  tax.  In  this  way,  the  terms 
direct  taxes,  and  capitation  and  other  direct  tax,  are  satisfied. 
It  is  not  necessary  to  determine,  whether  a  tax  on  the  product  of 
land  be  a  direct  or  indirect  tax.  Perhaps,  the  immediate  product 
of  land,  in  its  original  and  crude  state,  ought  to  be  considered  as 
the  land  itself;  it  makes  part  of  it;  or  else  the  provision  made 
against  taxing  exports  would  be  easily  eluded.  Land,  inde- 
pendently of  its  produce,  is  of  no  value.  When  the  produce  is 
converted  into  a  manufacture,  it  assumes  a  new  shape;  its  nature 
is  altered;  its  original  state  is  changed;  it  becomes  quite  another 
subject,  and  will  be  differently  considered.  Whether  direct  taxes, 
in  the  sense  of  the  Constitution,  comprehend  any  other  tax  than 
a  capitation  tax,  and  tax  on  land,  is  a  questionable  point.  .  .  . 
I  never  entertained  a  doubt,  that  the  principal,  I  will  not  say,  the 
only,  objects,  that  the  framers  of  the  Constitution  contemplated 
as  falling  within  the  rule  of  apportionment,  were  a  capitation  tax 


HYLTON   V.    UNITED    STATES.  797 

and  a  tax  on  land.  Local  considerations,  and  the  particular  cir- 
cumstances, and  relative  situation  of  the  States,  naturally  lead 
to  this  view  of  the  subject.  The  provision  was  made  in  favor  of 
the  southern  States.  They  possessed  a  large  number  of  slaves; 
they  had  extensive  tracts  of  territory,  thinly  settled,  and  not 
very  productive.  A  majority  of  the  States  had  but  few  slaves, 
and  several  of  them  a  limited  territory,  well  settled,  and  in  a 
high  state  of  cultivation.  The  southern  States,  if  no  provision 
had  been  introduced  in  the  Constitution,  would  have  been  wholly 
at  the  mercy  of  the  other  States.  Congress  in  such  case,  might 
tax  slaves,  at  discretion  or  arbitrarily,  and  land  in  every  part  of 
the  Union  after  the  same  rate  or  measure:  so  much  a  head  in  the 
first  instance,  and  so  much  an  acre  in  the  second.  To  guard  them 
against  imposition  in  these  particulars,  was  the  reason  of  intro- 
ducing the  clause  in  the  Constitution,  which  directs  that  repre- 
sentatives and  direct  taxes  shall  be  apportioned  among  the  States, 
according  to  their  respective  numbers. 

On  the  part  of  the  plaintiff  in  error,  it  has  been  contended, 
that  the  rule  of  apportionment  is  to  be  favored  rather  than  the 
rule  of  uniformity;  and,  of  course,  that  the  instrument  is  to  re- 
ceive such  a  construction,  as  will  extend  the  former  and  restrict 
the  latter.  I  am  not  of  that  opinion.  The  Constitution  has  been 
considered  as  an  accommodating  system;  it  was  the  effect  of 
mutual  sacrifices  and  concessions;  it  was  the  work  of  compromise. 
The  rule  of  apportionment  is  of  this  nature;  it  is  radically  wrong; 
it  cannot  be  supported  by  any  solid  reasoning.  Why  should 
slaves,  who  are  a  species  of  property,  be  represented  more  than 
any  otlicr  property?  The  rule,  therefore,  ought  not  to  be  ex- 
tended by  construction. 

Again,  numbers  do  not  afford  a  just  estimate  or  rule  of  wealth. 
It  is,  indeed,  a  very  uncertain  and  incompetent  sign  of  opulence. 
There  is  another  reason  against  the  extension  of  the  principle 
laid  down  in  the  Constitution. 

The  counsel  on  the  part  of  the  plaintiff  in  error,  have  further 
urged,  that  an  equal  participation  of  the  expense  or  burden  by 
the  several  States  in  the  Union,  was  the  primary  object,  which 
the  framers  of  the  Constitution  had  in  view;  and  that  this  object 
will  be  effected  by  the  principle  of  apportionment,  which  is  an 
operation  upon  States,  and  not  on  individuals;  for,  each  State 
will  be  debited  for  the  amount  of  its  quota  of  the  tax,  and  credited 
for  its  payments.  This  brings  it  to  the  old  system  of  requisitions. 
An  equal  rule  is  doubtless  the  best.    But  how  is  this  to  be  applied 


798  EXPRESS   PROVISIONS   ON   TAXATION. 

to  States  or  to  individuals?  The  latter  are  the  objects  of  taxa- 
tion, without  reference  to  States,  except  in  the  case  of  direct 
taxes.  The  fiscal  power  is  exerted  certainly,  equally,  and  effec- 
tually on  individuals;  it  cannot  be  exerted  on  States.  The  his- 
tory of  the  United  Netherlands,  and  of  our  own  countrj',  will 
evince  the  truth  of  this  position.  The  government  of  the  United 
States  could  not  go  on  under  the  confederation,  because  Congress 
were  obliged  to  proceed  in  the  line  of  requisition.  .  .  . 

All  taxes  on  expenses  or  consumption  are  indirect  taxes.  A 
tax  on  carriages  is  of  this  kind,  and  of  course  is  not  a  direct  tax. 
Indirect  taxes  are  circuitous  modes  of  reaching  the  revenue  of 
individuals,  who  generally  live  according  to  their  income.  In 
many  cases  of  this  nature  the  individual  may  be  said  to  tax  him- 
self. I  shall  close  the  discourse  with  reading  a  passage  or  two 
from  Smith's  "Wealth  of  Nations." 

"The  impossibility  of  taxing  people  in  proportion  to  their 
revenue,  by  any  capitation,  seems  to  have  given  occasion  to  the 
invention  of  taxes  upon  consumable  commodities;  the  State  not 
knowing  how  to  tax  directly  and  proportionably  the  revenue  of 
its  subjects,  endeavours  to  tax  it  indirectly  by  taxing  their  expence, 
which  it  is  supposed  in  most  cases  will  be  nearly  in  proportion  to 
their  revenue.  Their  expence  is  taxed  by  taxing  the  consumable 
commodities  upon  which  it  is  laid  out."     Vol.  3,  p.  331.  .  .  . 

The  judgment  rendered  in  the  Circuit  Court  .  .  .  ought  to  be 
affirmed. 

Iredell,  J.  I  agree  .  .  .  that  the  tax  in  question  is  agree- 
able to  the  Constitution.  .  .  . 

As  all  direct  taxes  must  be  apportioned,  it  is  evident  that  the 
Constitution  contemplated  none  as  direct  but  such  as  could  be 
apportioned.  If  this  cannot  be  apportioned,  it  is,  therefore,  not 
a  direct  tax  in  the  sense  of  the  Constitution. 

That  this  tax  cannot  be  apportioned,  is  evident.  .  .  . 

There  is  no  necessity,  or  propriety,  in  determining  what  is,  or 
is  not,  a  direct,  or  indirect,  tax  in  all  cases. 

Some  difficulties  may  occur  which  we  do  not  at  present  fore- 
see. Perhaps  a  direct  tax  in  the  sense  of  the  Constitution,  can 
mean  nothing  but  a  tax  on  something  inseparably  annexed  to 
the  soil:  Something  capable  of  apportionment  under  all  such 
circumstances. 

A  land  or  a  poll  tax  may  be  considered  of  this  description. 

The  latter  is  to  be  considered  so  particularly,  under  the  pres- 
ent Constitution,  on  account  of  the  slaves  in  the  southern  States, 


LICENSE   TAX   CASES.  799 

who  give  a  ratio  in  the  representation  in  the  proportion  of  3 
to  5. 

Either  of  these  is  capable  of  apportionment. 

In  regard  to  other  articles,  there  may  possibly  be  considerable 
doubt. 

It  is  sufficient,  on  the  present  occasion,  for  the  court  to  be  satis- 
fied, that  this  is  not  a  direct  tax  contemplated  by  the  Constitu- 
tion, in  order  to  affirm  the  present  judgment;  since,  if  it  cannot 
be  apportioned,  it  must  necessarily  be  uniform.  .  .  . 

Wilson,  J.  .  .  .  My  sentiments,  in  favor  of  the  constitu- 
tionality of  the  tax  in  question,  have  not  been  changed. 

Gushing,  J.  As  I  have  been  prevented  .  .  .  from  attending 
to  the  argument,  it  would  be  improper  to  give  an  opinion.  .  .  . 

Affirmed. 


LICENSE  TAX  CASES. 
Supreme  Court  of  the  United  States.     1867. 

(5  Wallace,  462.]^ 

These  were  nine  cases,  four  of  them  coming  up  from  the  Cir- 
cuit Courts  of  the  United  States  for  the  Northern  District  of 
New  York,  the  Southern  District  of  New  York,  and  the  District 
of  Massachusetts,  on  certificate  of  division  of  opinion,  and  five 
of  them  coming  up  from  the  Circuit  Court  for  the  District  of 
New  Jersey  on  writ  of  error. 

In  each  case  there  was  an  indictment  for  breach  of  the  federal 
internal  revenue  law  requiring  persons  engaged  in  certain  busi- 
nesses, including  selHng  lottery  tickets  and  retail  dealing  in 
liquors,  to  make  a  payment  to  the  United  States.  Seven  of  the 
cases  were  under  a  statute  (1864)  speaking  of  the  exaction  as  a 
license,  and  the  other  two  were  under  a  later  statute  (1866) 
speaking  of  it  as  a  special  tax.  Each  statute  provided  that  the 
payment  should  not  be  so  construed  as  to  authorize  business  in 
a  State  where  it  was  prohibited  or  to  prevent  taxation  by  the 
State  of  the  same  business.  Eight  of  the  cases  dealt  with  lot- 
teries, and  the  other  with  retail  selling  of  liquor.    In  each  instance 

1  The  statement  has  not  been  reprinted.  —  Ed. 


800  EXPRESS  PROVISIONS  ON   TAXATION. 

the  business  was  forbidden  by  the  State.  In  each  instance  the 
question  was  whether  a  conviction  for  non-comphancc  with  the 
act  of  Congress  could  be  had  for  carrying  on  the  business  in  a 
State  where  the  business  was  prohibited.  In  the  cases  coming 
up  on  writ  of  error,  a  plea  setting  up  the  State  statute  had  been 
overruled  upon  demurrer.  In  the  cases  coming  up  on  division  of 
opinion,  there  had  been  a  demurrer  to  the  indictment. 

W.  M.  Evarts  and  others,  for  the  defendants;  and  Speed,  At- 
torney General,  Stanbery,  Attorney  General,  and  Reed,  Attorney 
General  of  Massachusetts,  contra. 

Chase,  C.  J.,  .  .  .  delivered  the  opinion  of  the  court. 

In  the  argument  of  all  the  cases  here  before  the  court,  it  was 
strenuously  maintained  by  counsel  for  the  defendants  that  the 
imposition  of  penalties  for  carrying  on  any  business  prohibited 
by  State  laws,  without  payment  for  the  license  or  special  tax 
required  by  Congress,  is  contrary  to  public  policy;  and  illustra- 
tions of  this  supposed  contrariety  were  drawn  from  hypothetical 
cases  of  the  license  of  crime  for  revenue.  .  .  . 
\  This  court  can  know  nothing  of  public  policy  except  from  the 
Constitution  and  the  laws,  and  the  course  of  administration  and 
decision.  It  has  no  legislative  powers.  It  cannot  amend  or 
modify  any  legislative  acts.  It  cannot  examine  questions  as 
expedient  or  inexpedient,  as  politic  or  impolitic.  Considerations 
of  that  sort  must,  in  general,  be  addressed  to  the  legislature. 
Questions  of  policy  determined  there  are  concluded  here. 

There  are  cases,  it  is  true,  in  which  arguments  drawn  from 
public  poUcy  must  have  large  influence;  but  these  are  cases  in 
which  the  course  of  legislation  and  administration  do  not  leave 
any  doubt  upon  the  question  what  the  public  policy  is,  and  in 
which  what  would  otherwise  be  obscure  or  of  douljtful  interpre- 
tation, may  be  cleared  and  resolved  by  reference  to  what  is  already 
received  and  established. 

The  cases  before  us  are  not  of  this  sort.  The  legislature  has 
thought  fit,  by  enactments  clear  of  all  ambiguity,  to  impose  penal- 
ties for  unlicensed  deahng  in  lottery  tickets  and  in  liquors.  These 
enactments,  so  long  as  they  stand  unrepealed  and  unmodified, 
express  the  public  poHcy  in  regard  to  the  subjects  of  them.  The 
proposition  that  they  are  contrary  to  public  poUcy  is  therefore  a 
contradiction  in  terms,  or  it  is  intended  as  a  denial  of  their  ex- 
pediency or  their  propriety.  .  .  . 

We  come  now  to  examine  a  more  serious  objection  to  the  legis- 
lation of  Congress  in  relation  to  the  dealings  in  controversy.    It 


LICENSE  TAX  CASES.  801 

was  argued  for  the  defendants  in  error  that  a  license  to  carry  on 
a  particular  business  gives  an  authority  to  carry  it  on;  that  the 
dealings  in  controversy  were  parcel  of  the  internal  trade  of  the 
State  in  which  the  defendants  resided;  that  the  internal  trade  of 
a  State  is  not  subject,  in  any  respect,  to  legislation  by  Congress, 
and  can  neither  be  hcensed  nor  prohibited  by  its  authority;  that 
licenses  for  such  trade,  granted  under  acts  of  Congress,  must 
therefore  be  absolutely  null  and  void;  and,  consequently,  that 
penalties  for  carrying  on  such  trade  without  such  hcense  could 
not  be  constitutionally  imposed. 

This  series  of  propositions,  and  the  conclusion  in  which  it 
terminates,  depends  on  the  postulate  that  a  license  necessarily 
confers  an  authority  to  carry  on  the  licensed  business.  But  do 
the  hcenses  required  by  the  acts  of  Congress  for  selling  liquor 
and  lottery  tickets  confer  any  authority  whatever? 

It  is  not  doubted  that  where  Congress  possesses  constitutional 
power  to  regulate  trade  or  intercourse,  it  may  regulate  by  means 
of  licenses  as  well  as  in  other  modes;  and,  in  case  of  such  regula- 
tion, a  Ucense  will  give  to  the  licensee  authority  to  do  whatever 
is  authorized  by  its  terms.  .  .  . 

But  very  different  considerations  apply  to  the  internal  com- 
merce or  domestic  trade  of  the  States.  Over  this  commerce  and 
trade  Congress  has  no  power  of  regulation  nor  any  direct  control. 
This  power  belongs  exclusively  to  the  States.  No  interference 
by  Congress  with  the  business  of  citizens  transacted  within  a 
State  is  warranted  by  the  Constitution,  except  such  as  is  strictly 
incidental  to  the  exercise  of  powers  clearly  granted  to  the  legis- 
lature. The  power  to  authorize  a  business  within  a  State  is 
plainly  repugnant  to  the  exclusive  power  of  the  State  over  the 
same  subject.  It  is  true  that  the  power  of  Congress  to  tax  is  a 
very  extensive  power.  It  is  given  in  the  Constitution,  with  only 
one  exception  and  only  two  qualifications.  Congress  cannot  tax 
exports,  and  it  must  impose  direct  taxes  by  the  rule  of  apportion- 
ment, and  indirect  taxes  by  the  rule  of  uniformity.  Thus  limited, 
and  thus  only,  it  reaches  every  subject,  and  may  be  exercised  at 
discretion.  But  it  reaches  only  existing  subjects.  Congress  can- 
not authorize  a  trade  or  business  within  a  State  in  order  to  tax  it. 

If,  therefore,  the  licenses  under  consideration  must  be  regarded 
as  giving  authority  to  carry-  on  the  branches  of  business  which 
they  license,  it  might  be  difficult,  if  not  impossible,  to  reconcile 
the  granting  of  them  with  the  Constitution. 

But  it  is  not  necessary  to  regard  these  laws  as  giving  such 


g02  EXPRESS  PROVISIONS   ON   TAXATION. 

authority.  So  far  as  they  relate  to  trade  within  State  limits,  they 
give  none,  and  can  give  none.  They  simply  express  the  purpose 
of  the  govornmont  not  to  interfere  by  jjenal  i)roceedings  with  the 
trade  nominally  licensed,  if  the  reciuired  taxes  are  paid.  The 
power  to  tax  is  not  questioned,  nor  the  power  to  impose  penalties 
for  non-payment  of  taxes.  The  granting  of  a  hccnse,  therefore, 
must  be  regarded  as  nothing  more  tluin  a  mere  form  of  imposing 
a  tax,  and  of  implying  nothing  except  that  the  licensee  shall  be 
subject  to  no  penalties  under  national  law,  if  he  pays  it. 

This  construction  is  warranted  by  the  practice  of  the  govern- 
ment from  its  organization.  .  .  . 

With  this  course  of  legislation  in  view,  we  cannot  say  that 
there  is  anything  contrary  to  the  Constitution  in  these  provisions 
of  the  recent  or  existing  internal  revenue  acts  relating  to  licenses. 

Nor  are  we  able  to  perceive  the  force  of  the  other  objection 
made  in  argument,  that  the  deaUngs  for  which  licenses  are  re- 
quired being  prohibited  by  the  laws  of  the  State,  cannot  be  taxed 
by  the  National  government.  There  would  be  great  force  in  it 
if  the  Ucenses  were  regarded  as  giving  authority,  for  tiien  there 
would  be  a  direct  conflict  between  National  and  State  legislation 
on  a  subject  which  the  Constitution  places  under  the  exclusive 
control  of  the  States. 

But,  as  we  have  already  said,  these  licenses  give  no  authority. 
They  are  mere  receipts  for  taxes.  And  this  would  be  true  had  the 
internal  revenue  act  of  1864,  like  those  of  1794  and  1813,  been 
silent  on  this  head.  But  it  was  not  silent.  It  expressly  provided, 
in  section  sixty-seven,  that  no  license  provided  for  in  it  should, 
if  granted,  be  construed  to  authorize  any  business  within  any 
State  or  Territory  prohibited  by  the  laws  thereof,  or  so  as  to 
prevent  the  taxation  of  the  same  business  by  the  State.  .  .  . 

There  is  nothing  hostile  or  contradictory,  therefore,  in  the  acts 
of  Congress  to  the  legislation  of  the  States.  What  the  latter 
prohibits,  the  former,  if  the  business  is  found  existing  notwith- 
standing the  prohibition,  discourages  by  taxation.  The  two  lines 
of  legislation  proceed  in  the  same  direction,  and  tend  to  the  same 
result.  .  .  . 

Congress,  in  framing  the  act  of  1866,  has  carefully  guarded 
against  any  misconstruction  of  the  legislative  intention  by  sub- 
stituting throughout  the  term  "special  tax"  for  the  word  "li- 
cense." This  judicious  legislation  has  removed  all  future 
possibility  of  the  error  which  has  been  common  among  persons 
engaged  in  particular  branches  of  business,  that  they  derived 


VEAZIE   BANK   V.   FENNO.  803 

from  the  licenses  they  obtained  under  the  internal  revenue  laws 
an  authority  for  carrying  on  the  licensed  business  independently 
of  State  regulation  and  control.  And  it  throws,  moreover,  upon 
the  previous  legislation  all  the  light  of  a  declaratory  enactment. 
It  fully  confirms,  if  confirmation  wore  needed,  the  view  we  have 
already  expressed,  that  the  requirement  of  payment  for  Hcenses 
under  former  laws  was  a  mere  form  of  special  taxation. 

Ordered  accordingly. 


VEAZIE  BANK  v.   FENNO. 
Supreme  Court  of  the  United  States.  1869. 

[8  Wallace,  533.] ' 

On  certificate  of  division  from  the  United  States  Circuit  Court 
for  the  District  of  Maine,  in  which  court  the  Veazie  Bank  brought 
action  against  the  collector  of  internal  revenue  for  reimburse- 
ments of  taxes  paid  under  protest.  The  taxes  had  been  exacted 
under  the  act  of  July  13,  1806  (14  Stat.  146),  enacting  that 
"every  National  banking  association.  State  bank,  or  State 
banking  association,  shall  pay  a  tax  of  ten  per  centum  on  the 
amount  of  notes  of  any  person,  State  bank,  or  State  banking  as- 
sociation, used  for  circulation  and  paid  out  for  them."  There 
was  an  agreed  statement  of  facts;  and  upon  a  prayer  for  instruc- 
tions to  the  jury  the  judges  found  themselves  opposed  in  opinion 
on  three  questions,  each  of  which  was,  in  effect,  whether  the 
provision  quoted  was  constitutional. 

Reverdy  Johnson  and  C.  Gushing,  for  the  bank;  and  Hoar, 
Attorney  General,  contra. 

Chase,  C.  J.,  delivered  the  opinion  of  the  court.  . 

In  support  of  the  position  that  the  act  of  Congress,  so  far  as 
it  provides  for  the  levy  and  collection  of  this  tax,  is  repugnant 
to  the  Constitution,  two  propositions  have  been  argued  with  much 
force  and  earnestness. 

The  first  is  that  the  tax  in  question  is  a  direct  tax,  and  has  not 
been  apportioned  among  the  States  agreeably  to  the  Constitution. 

The  second  is  that  the  act  imposing  the  tax  impairs  a  franchise 
^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


804  EXPRESS  PROVISIONS  ON  TAXATION. 

granted  by  the  State,  and  that  Congress  has  no  power  to  pass 
any  law  with  that  intent  or  effect. 

The  first  of  these  propositions  will  be  first  examined. 
The  difficulty  of  defining  with  accuracy  the  terms  used  in  the 
clause  of  the  Constitution  which  confers  the  power  of  taxation 
upon  Congress,  was  felt  in  the  Convention  which  framed  that  in- 
strument, and  has  always  been  experienced  by  courts  when  called 
upon  to  determine  their  meaning. 

The  general  intent  of  the  Constitution,  however,  seems  plain. 
The  General  Government,  administered  by  the  Congress  of  the 
Confederation,  had  been  reduced  to  the  verge  of  inipotency  l)y 
the  necessity  of  relying  for  revenue  upon  requisitions  on  the 
States,  and  it  was  a  leading  object  in  the  adoption  of  the  Con- 
stitution to  relieve  the  government,  to  be  organized  under  it, 
from  this  necessity,  and  confer  upon  it  ample  power  to  provicle 
revenue  by  the  taxation  of  jiersons  and  property.  And  nothing  is 
clearer,  from  the  discussions  in  the  Convention  and  the  discus- 
sions which  preceded  final  ratification  by  the  necessary  number  of 
States,  than  the  purpose  to  give  this  power  to  Congress,  as  to  the 
taxation  of  ever>^hing  except  exports,  in  its  fullest  extent. 

This  purpose  is  apparent,  also,  from  the  terms  in  which  the 
taxing  power  is  granted.  The  power  is  "to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debt  and  provide  for  the 
common  defence  and  general  welfare  of  the  United  States." 
More  comprehensive  words  could  not  have  been  used.  Exports 
only  are  by  another  provision  excluded  from  its  application.  .  .  . 
Direct  taxes  must  be  laid  and  collected  by  the  rule  of  appor- 
tionment; duties,  imposts,  and  excises  must  be  laid  and  collected 
under  the  rule  of  uniformity. 

Much  diversity  of  opinion  has  always  prevailed  upon  the  ques- 
tion, what  are  direct  taxes?    Attempts  to  answer  it  by  reference 
to  the  definitions  of  political  economists  have  been  frequently 
made,   but   without   satisfactory  results.     The   enumeration  of 
the  different  kinds  of  taxes  w^hich  Congress  was  authorized  to 
impose  was  probably  made  with  very  little  reference  to  their 
speculations.    The  great  work  of  Adam  Smith,  the  first  compre- 
hensive treatise  on  political  economy  in  the  English  language, 
had  then  been  recently  published;  but  in  this  work,  though  there 
are  passages  which  refer  to  the  characteristic  difference  between 
direct  and  indirect  taxation,  there  is  nothing  which  affords  any 
valuable  light  on  the  use  of  the  words  "direct  taxes"  in  the 
Constitution. 


VEAZIE   BANK   V.   FEXXO.  805 

We  are  obliged,  therefore^  to  resort  to  historical  evidence, 
and  to  seek  the  meaning  of  the  words  in  the  use  and  in  the  opinion 
of  those  whose  relations  to  the  government,  and  means  of  knowl- 
edge, warranted  them  in  speaking  with  authority. 

And,  considered  in  this  light,  the  meaning  and  application 
of  the  rule,  as  to  direct  taxes,  appears  to  us  quite  clear. 

It  is,  as  we  think,  distinctly  showTi  in  every  act  of  Congress 
on  the  subject.  .  .  . 

In  each  instance,  the  total  sum  was  apportioned  among  the 
States,  by  the  constitutional  rule,  and  was  assessed  at  prescribed 
rates,  on  the  subjects  of  the  tax.  These  subjects,  in  1798,  1813, 
1815,  1816,  were  lands,  improvements,  dwelling-houses,  and 
slaves;  and  in  1861,  lands,  improvements,  and  dwelling-houses 
only.  Under  the  act  of  1798,  slaves  were  assessed  at  fifty 
cents  on  each;  under  the  other  acts,  according  to  valuation  by 
assessors. 

This  review  shows  that  personal  property,  contracts,  occupa- 
tions, and  the  like,  have  never  been  regarded  by  Congress  as  proper 
subjects  of  direct  tax.  It  has  been  supposed  that  slaves  must 
be  considered  as  an  exception  to  this  observation.  But  the  ex- 
ception is  rather  apparent  than  real.  As  persons,  slaves  were 
proper  subjects  of  a  capitation  tax,  which  is  described  in  the 
Constitution  as  a  direct  tax;  as  property  they  were,  by  the  laws 
of  .some,  if  not  most  of  the  States,  classed  as  real  property,  de- 
scendible to  heirs.  .  .  . 

The  fact,  then,  that  slaves  were  valued,  under  the  acts  referred 
to,  far  from  showing,  a.s  some  have  supposed,  that  Congress 
regarded  personal  property  as  a  proper  object  of  direct  taxation 
under  the  Constitution,  shows  only  that  Congress,  after  1798, 
regarded  slaves,  for  the  purposes  of  taxation,  as  realty. 

It  may  be  rightly  affirmed,  therefore,  that  in  the  practical 
construction  of  the  Constitution  by  Congress,  direct  taxes  have 
been  limited  to  taxes  on  land  and  appurtenances,  and  taxes  on 
polls,  or  capitation  taxes. 

And  this  construction  is  entitled  to  great  consideration,  espe- 
cially in  t>he  absence  of  anything  adverse  to  it  in  the  discussions 
of  the  Convention  which  framed,  and  of  the  conventions  which 
ratified,  the  Constitution. 

What  does  appear  in  those  discussions,  on  the  contrary,  supports 
the  construction.  Mr.  ]Madison  informs  us,  that  Mr.  King  asked 
what  was  the  precise  meaning  of  direct  taxation,  and  no  one 
answered.     On  another  day,  when  the  question  of  proportioning 


800  EXPRESS   PHOVISIONS   ON   TAXATION. 

representation  to  taxation,  anil  hotli  to  the  white  and  three- 
fifths  of  the  slave  inhabitants,  was  under  consideration,  Mr. 
Ellsworth  said:  "In  case  of  a  poll  tax,  there  would  bo  no  diffi- 
culty;" and,  speaking  doubtless  of  direct  taxation,  he  went  on 
to  observe:  "The  sum  allotted  to  a  State  may  be  levied  without 
difficulty,  according  to  the  plan  used  in  the  State  for  raising  its 
own  supplies."  All  this  doubtless  shows  uncertainty  as  to  the 
true  meaning  of  the  term  direct  tax;  but  it  indicates,  also,  an 
understanding  that  direct  taxes  were  such  as  may  be  levied  by 
capitation,  and  on  lands  and  appurtenances;  or,  perhaps,  by 
valuation  and  assessment  of  personal  property  upon  general 
lists.  For  these  were  the  subjects  from  which  the  States  at  that 
time  usually  raised  their  principal  supjilies. 

This  view  received  the  sanction  of  this  court  two  years  before 
the  enactment  of  the  first  law  imi)osing  direct  taxes  eo  nomine. 

During  the  February  Term,  1790,  the  constitutionality  of  the 
act  of  1794,  imposing  a  duty  on  carriages,  came  under  considera- 
tion in  the  case  of  Hylton  v.  The  United  States,  3  Dallas,  171.  .  .  . 

The  tax  under  consideration  is  a  tax  on  bank  circulation,  and 
may  very  well  be.  classed  under  the  head  of  duties.  Certainly 
it  is  not,  in  the  sense  of  the  Constitution,  a  direct  tax.  It  may 
be  said  to  come  within  the  same  category  of  taxation  as  the  tax 
on  incomes  of  insurance  companies,  which  this  court,  at  the  last 
term,  in  the  case  of  Pacific  Insurance  Company  v.  Soule,  7 
Wallace,  434,  held  not  to  be  a  direct  tax. 

Is  it,  then,  a  tax  on  a  franchise  granted  by  a  State,  which 
Congress,  upon  any  principle  exempting  the  reserved  powers  of 
the  States  from  impairment  by  taxation,  must  be  held  to  have 
no  authority  to  lay  and  collect? 

We  do  not  say  that  there  may  not  be  such  a  tax.  It  may  be 
admitted  that  the  reserved  rights  of  the  States,  such  as  the  right 
to  pass  laws,' to  give  effect  to  laws  through  executive  action,  to 
administer  justice  through  the  courts,  and  to  employ  all  neces- 
sary agencies  for  legitimate  purposes  of  State  government,  are  not 
proper  subjects  of  the  taxing  power  of  Congress.  But  it  cannot 
be  admitted  that  franchises  granted  by  a  State  are  necessarily 
exempt  from  taxation;  for  franchises  are  property,  often  very 
valuable  and  productive  property;  and  when  not  conferred  for 
the  purpose  of  giving  effect  to  some  reserved  power  of  a  State, 
seem  to  be  as  properly  objects  of  taxation  as  any  other  property. 

But  in  the  case  before  us  the  object  of  taxation  is  not  the 
franchise  of  the  bank,  but  property  created,  or  contracts  made 


VEAZIE   BANK   V.   FENNO.  807 

and  issued  under  the  franchise,  or  power  to  issue  bank  bills. 
A  railroad  company,  in  the  exercise  of  its  corporate  franchises, 
issues  freight  receipts,  bills  of  lading,  and  passenger  tickets; 
and  it  cannot  be  doubted  that  the  organization  of  railroads  is 
quite  as  important  to  the  State  as  the  organization  of  banks. 
But  it  will  hardly  be  questioned  that  these  contracts  of  the  com- 
pany are  objects  of  taxation  within  the  powers  of  Congress,  and 
not  exempted  by  any  relation  to  the  State  which  granted  the 
charter  of  the  railroad.  And  it  seems  difficult  to  distinguish  the 
taxation  of  notes  issued  for  circulation  from  the  taxation  of 
these  railroad  contracts.  Both  descriptions  of  contracts  are  means 
of  profit  to  the  corporations  which  issue  them;  and  both,  as  we 
think,  may  properly  be  made  contributory  to  the  pubHc  revenue. 

It  is  insisted,  however,  that  the  tax  in  the  case  before  us  is 
excessive,  and  so  excessive  as  to  indicate  a  purpose  on  the  part  of 
Congress  to  destroy  the  franchise  of  the  bank,  and  is,  therefore, 
beyond  the  constitutional  power  of  Congress. 

The  first  answer  to  this  is  that  the  judicial  cannot  prescribe  to 
the  legislative  department  of  the  government  limitations  upon 
the  exercise  of  its  acknowledged  powers.  The  power  to  tax  may 
be  exercised  oppressively  upon  persons,  but  th'e  responsibility  of 
the  legislature  is  not  to  the  courts,  but  to  the  people  by  whom  its 
members  are  elected.  So  if  a  particular  tax  bears  heavily  upon 
a  corporation,  or  a  class  of  corporations,  it  cannot,  for  that  reason 
only,  be  pronounced  contrary  to  the  Constitution. 

But  there  is  another  answer  which  vindicates  equally  the 
wisdom  and  the  power  of  Congress. 

It  cannot  be  doubted  that  under  the  Constitution  the  power 
to  provide  a  circulation  of  coin  is  given  to  Congress.  And  it  is 
settled  by  the  uniform  practice  of  the  government  and  by  repeated 
decisions,  that  Congress  may  constitutionally  authorize  the 
emission  of  bills  of  credit.  It  is  not  important  here,  to  decide 
whether  the  quahty  of  legal  tender,  in  payment  of  debts,  can 
be  constitutionally  imparted  to  these  bills;  it  is  enough  to  say, 
that  there  can  be  no  question  of  the  power  of  the  government  to 
emit  them;  to  make  them  receivable  in  payment  of  debts  to  itself; 
to  fit  them  for  use  by  those  who  see  fit  to  use  them  in  all  the  trans- 
actions of  commerce;  to  provide  for  their  redemption;  to  make 
them  a  currency,  uniform  in  value  and  description,  and  conven- 
ient and  useful  for  circulation.  .  .  . 

Having  thus,  in  the  exercise  of  undisputed  constitutional 
powers,  undertaken  to  provide  a  currency  for  the  whole  country; 


308  EXPRESS   PROVISIONS   ON   TAXATION. 

it  cannot  be  questioned  ihat  Congress  may,  constitutionally, 
secure  the  benefit  of  it  to  the  people  by  appropriate  legislation. 
To  this  end,  Congress  has  denied  the  quality  of  legal  tender  to 
foreign  coins,  and  has  provided  by  law  against  the  imposition  of 
counterfeit  and  bast  coin  on  the  community.  To  the  same 
end,  Congress  may  restrain,  by  suitable  enactments,  the  circula- 
tion as  money  of  any  notes  not  issued  under  its  own  authority. 
Without  this  power,  indeed,  its  attempts  to  secure  a  sound  and 
uniform  currency  for  the  country  must  be  futile. 

Viewed  in  this  light,  as  well  as  in  the  other  light  of  a  duty  on 
contracts  or  property,  we  cannot  doubt  the  constitutionality 
of  the  tax  under  consideration. 

The  three  questions  certified  from  the  Circuit  Court  of  the 
District  of  Maine  must,  therefore,  be  answered 

Affirmatively. 

Nelson,  J.,  with  whom  concurred  Davis,  J.,  dissenting.  .  .  . 


STATE  TONNAGE  TAX  CASES. 
Supreme  Court  of  the  United  States.    1871. 

[12  Wallace,  204.1 ' 

Error  to  the  Supreme  Court  of  Alabama. 

Under  revenue  laws  of  Alabama  the  rate  of  taxation  for  prop- 
erty generally  was  one  half  of  one  per  cent,  but  on  all  vessels 
lying  in  the  navigable  waters  of  the  State  there  was  a  tax  at  "the 
rate  of  $1  per  ton  of  the  registered  tonnage."  A  tax  collector  de- 
manded from  two  o^\'ners  of  vessels  sums  proportioned  to  the 
registered  tonnage;  and  the  State  exacted  no  other  tax.  The 
vessels  in  question  were  exclusively  engaged  in  carrying  freight 
and  passengers  within  the  State,  on  waters  navigable  from  the 
sea.  The  vessels  were  enrolled  and  licensed  for  the  coasting  trade. 
One  of  the  owners  paid  the  tax  under  protest  and  then  brought 
action  in  a  lower  court  of  the  State  to  recover  the  money;  and 
the  other  sought  in  a  similar  court  to  enjoin  the  collector.  De- 
cision was  given  in  each  case  against  the  validity  of  the  tax;  but 
there  were  reversals  in  the  Supreme  Court  of  Alabama. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


STATE  TONNAGE  TAX  CASES.  809 

J.  A.  Campbell  and  another,  for  plaintiffs  in  error;  and  P. 
Phillips,  contra. 

Clifford,  J.,  delivered  the  judgment  of  the  court.  .  .  . 

Taxes  le\'ied  by  a  State  upon  ships  and  vessels  owned  by  the 
citizens  of  the  State  as  property,  based  on  a  valuation  of  the  same 
as  property,  are  not  within  the  prohibition  of  the  Constitution, 
but  it  is  equally  clear  and  undeniable  that  taxes  levied  by  a  State 
upon  ships  and  vessels  as  instruments  of  commerce  and  naviga- 
tion are  within  that  clause  of  the  instrument  which  prohibits  the 
States  from  levying  any  duty  of  tonnage,  without  the  consent  of 
Congress;  and  it  makes  no  difference  whether  the  ships  or  ves- 
sels taxed  belong  to  the  citizens  of  the  State  which  levies  the  tax 
or  the  citizens  of  another  State,  as  the  prohibition  is  general, 
withdrawing  altogether  from  the  States  the  power  to  lay  any  duty 
of  tonnage  under  any  circumstances,  ^^'ithout  the  consent  of  Con- 
gress. Gibbons  v.  Ogden,  9  Wheaton,  202;  Sinnot  r.  Davenport, 
22  Howard,  238;  Foster  v.  Davenport,  lb.  245;  Perry  v.  Torrence, 
8  Ohio,  524. 

Annual  taxes  upon  property  in  ships  and  vessels  are  continu- 
ally laid,  and  their  validity  was  never  doubted  or  called  in  ques- 
tion, but  if  the  States,  without  the  consent  of  Congress,  tax  ships 
or  vessels  as  instruments  of  commerce,  by  a  tonnage  duty,  or 
indirectly  by  imposing  the  tax  upon  the  master  or  crew,  they 
assume  a  jurisdiction  which  they  do  not  possess,  as  every  such 
act  falls  directly  within  the  prohibition  of  the  Constitution.  Pas- 
senger Ca.ses,  7  Howard,  447,  481.  .  .  . 

Tonnage  duties  are  as  much  taxes  as  duties  on  imports  or  ex- 
ports, and  the  prohibition  of  the  Constitution  extends  as  fully 
to  such  duties  if  levied  by  the  States  as  to  duties  on  imports  or 
exports,  and  for  reasons  quite  as  strong  as  those  which  induced 
the  framers  of  the  Constitution  to  withdraw  imports  and  exports 
from  State  taxation.  Measures,  however,  scarcely  distinguish- 
able from  each  other  may  flow  from  distinct  grants  of  power,  as 
for  example.  Congress  does  not  possess  the  power  to  regulate  the 
purely  internal  commerce  of  the  States,  but  Congress  may  eiu-oll 
and  license  ships  and  vessels  to  sail  from  one  port  to  another  in 
the  same  State,  and  it  is  clear  that  such  ships  and  vessels  are 
deemed  ships  and  vessels  of  the  United  States,  and  that  as  such 
they  are  entitled  to  the  privileges  of  ships  and  vessels  employed 
in  the  coasting  trade.  1  Stat,  at  Large,  287;  lb.  305;  3  Kent  (Uth 
ed.),  203.  ... 

If  the  tax  levied  is  a  duty  of  tonnage,  it  is  conceded  that  it  is 


810  EXPRESS  PROVISIONS   ON  TAXATION. 

illegal,  and  it  is  difficult  to  see  how  the  concession  could  be  avoided, 
as  the  prohibition  is  express,  but  the  attempt  is  made  to  show  that 
the  legislature  in  enacting  the  law  imposing  the  tax,  merely  referred 
to  the  registered  tonnage  of  the  steamboats  "as  a  way  or  mode  to 
determine  and  ascertain  the  tax  to  be  assessed  on  the  steamboats, 
and  to  furnish  a  rule  or  rate  to  govern  the  assessors  in  the  per- 
formance of  their  duties." 

Suppose  that  could  be  admitted,  it  would  not  have  much  tend- 
ency to  strengthen  the  argument  for  the  defendant,  as  the  sug- 
gestion concedes  what  is  obvious  from  the  schedule,  that  the 
taxes  are  levied  without  any  regard  to  the  value  of  the  steamboats. 
But  the  proposition  involved  in  the  suggestion  cannot  be  admitted, 
as  by  the  very  terms  of  the  act,  the  tax  is  levied  on  the  steamboats 
wholly  irrespective  of  the  value  of  the  vessels  as  property,  and 
solely  and  exclusively  on  the  basis  of  their  cubical  contents  as 
ascertained  by  the  rules  of  admeasurement  and  computation  pre- 
scribed by  the  act  of  Congress.  .  .  . 

Taxes  levied  under  an  enactment  which  directs  that  a  tax  shall 
be  imposed  on  steamboats  at  the  rate  of  one  dollar  per  ton  of  the 
registered  tonnage  thereof,  and  that  the  same  shall  be  assessed 
and  collected  at  the  port  where  such  steamboats  are  registered, 
cannot,  in  the  judgment  of  this  court,  be  held  to  be  a  tax  on  the 
steamboat  as  property.  On  the  contrary  the  tax  is  just  what  the 
language  imports,  a  duty  of  tonnage,  which  is  made  even  plainer 
when  it  comes  to  be  considered  that  the  steamboats  are  not  to  be 
taxed  at  all  unless  they  are  "plying  in  the  navigable  waters  of  the 
State,"  showing  to  a  demonstration  that  it  is  as  instruments  of 
commerce  and  not  as  property  that  they  are  required  to  contribute 
to  the  revenues  of  the  State.   .  .  . 

Taxes  in  aid  of  the  inspection  laws  of  a  State,  under  special 
circumstances,  have  been  upheld  as  necessary  to  promote  the 
interests  of  commerce  and  the  security  of  navigation.  Cooley  v. 
Port  Wardens,  12  Howard,  314. 

Laws  of  that  character  are  upheld  as  contemplating  benefits 
and  advantages  to  commerce  and  navigation,  and  as  altogether 
distinct  from  imposts  and  duties  on  imports  and  exports  and  duties 
of  tonnage.  Usage,  it  is  said,  has  sanctioned  such  laws  where 
Congress  has  not  legislated,  but  it  is  clear  that  such  laws  bear  no 
relation  to  the  act  in  question,  as  the  act  under  consideration  is 
emphatically  an  act  to  raise  revenue  to  replenish  the  treasury  of  the 
State  and  for  no  other  purpose,  and  does  not  contemplate  any  benefi- 
cial service  for  the  steamboats  or  other  vessels  subjected  to  taxation. 


PEETE   V.    MORGAN.  811 

Beyond  question  the  act  is  an  act  to  raise  revenue  without  any 
corresponding  or  equivalent  benefit  or  advantage  to  the  vessels 
taxed  or  to  the  shipo\Miers,  and  consequently  it  cannot  be  up- 
held by  virtue  of  the  rules  applied  in  the  construction  of  laws 
regulating  pilot  dues  and  port  charges.  State  v.  Charleston,  4 
Rich.  S.  C.  286;  Benedict  v.  Vanderbilt,  1  Robt.  N.  Y.  200.  .  .  . 
Judgment  reversed.  .  .  .  Decree  reversed.  .  .  . 


PEETE  V.   MORGAN. 
Supreme  Court  of  the  United  States.     1874. 

[19  Wallace,  581.1 1 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Texas. 

Morgan,  a  citizen  of  New  York,  owning  two  lines  of  steamers 
running  between  Louisiana  and  Texas,  filed  a  bill  to  enjoin  the 
health  officer  of  Galveston  from  collecting  from  his  vessels  fees 
under  the  Texas  act  of  August  13,  1870,  enacting  that  every  vessel 
arriving  at  the  quarantine  station  of  any  town  on  the  coast  of 
Texas  should  pay  §5  for  the  first  hundred  tons  and  one  and  a  half 
cents  for  each  additional  ton.  The  court  below  granted  the 
injunction. 

No  counsel  for  appellants;   and  P.  Phillips,  for  appellee. 

Davis,  J.,  delivered  the  opinion  of  the  court. 

That  the  power  to  establish  quarantine  laws  rests  with  the 
States,  and  has  not  been  surrendered  to  the  General  govern- 
ment is  settled  in  Gibbons  v.  Ogden.  The  source  of  this  power 
is  in  the  acknowledged  right  of  a  State  to  provide  for  the  health 
of  its  people,  and  although  this  power  when  set  in  motion  may 
in  a  greater  or  less  degree  affect  commerce,  yet  the  laws  passed 
in  the  exercise  of  this  power  are  not  enacted  for  such  an  object. 
They  are  enacted  for  the  sole  purpose  of  preserving  the  public 
health,  and  if  they  injuriously  affect  commerce.  Congress,  under 
the  power  to  regulate  it,  may  control  them.  Of  necessity,  they 
operate  on  vessels  engaged  in  commerce,  and  may  produce  delay 
1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


812  EXPRESS   PROVISIONS  ON   TAXATION. 

or  inconvenience,  but  they  are  still  lawful  when  not  opposed  to 
any  constitutional  provision,  or  any  act  of  Congress  on  the 
subject. 

It  is  evident  that  the  power  to  establish  quarantine  regula- 
tions cannot  be  executed  without  tiie  State  possesses  the  means  to 
raise  a  revenue  for  their  enforcement,  l>ut  it  is  equally  evident 
that  the  means  used  for  this  purpose  must  be  of  such  a  character 
as  the  restrictions  imposed  by  the  Federal  Constitution  ujion  the 
taxing  power  of  the  States  authorize.  We  are  not  calknl  upon  in 
this  casejio  go  into  the  general  subject  of  the  limitations  imposed 
by  these  restrictions,  because  the  tax  in  question  is  manifestly  out- 
side the  juristliction  of  the  State  to  impose;  as  it  is  a  "duty  of 
tonnage,"  within  the  meaning  of  the  Constitution. 

This  duty  was  doubtless  imposed  to  raise  revenue,  but  Chief 
Justice  Marshall,  in  commenting  on  this  subject  in  Ciblwns  v. 
Ogden,  says:  "It  is  true,  that  duties  may  often  be,  and  in  fact 
often  are,  imposed  on  tonnage,  with  a  view  to  the  regulation  of 
commerce;  but  they  may  be  also  imposed  with  a  view  to  revenue; 
and  it  was,  therefore,  a  prudent  precaution  to  prohibit  the  States 
from  exercising  this  power."  This  power  caiuiot  be  exercised  with- 
out the  permission  of  Congress,  and  (  ongress  has  never  consented 
that  the  States  should  lay  any  duty  on  tonnage.  .  .  . 

Decree  affirmed. 


CANNON  V.  NEW  ORLEANS. 
Supreme  Court  of  the  United  States.     1874. 

[20  Wallace,  .577.] ' 

Error  to  the  Supreme  Court  of  Louisiana. 

The  city  of  New  Orleans  made  an  ordinance  that  the  levee  and 
wharfage  dues  on  all  steamboats  which  shall  moor  or  land  in  any 
part  of  the  port  of  New  Orleans  shall  be  ten  cents  per  ton  if  in 
port  not  exceeding  five  days,  and  five  dollars  per  day  thereafter, 
provided  that  boats  arriving  and  departing  more  than  once  in 
each  week  shall  pay  only  seven  cents  per  ton  each  trip  and  that 
boats  making  three  trips  per  week  shall  pay  five  cents  per  ton 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


CANNON  V.   NEW  ORLEANS.  813 

each  trip.  Under  this  ordinance  Cannon  paid  dues  for  several 
years  on  his  steamboat,  the  R.  E.  Lee.  Cannon  then  filed  a  peti- 
tion to  enjoin  further  collection  and  to  recover  the  money  paid. 
The  Supreme  Court  of  Louisiana  held  the  ordinance  vahd  and 
dismissed  the  petition. 

R.  H.  Marr  and  others,  for  plaintiff  in  error;  and  W.  H.  Peck- 
ham,  contra. 

Miller,  J.,  delivered  the  opinion  of  the  court. 
This  writ  of  error  is  based  upon  the  proposition  that  the  city 
ordinance  is  in  conflict  with  two  clauses  of  the  Constitution  of  the 
United  States,  namely,  that  which  grants  to  Congress  the  right 
to  regulate  commerce  with  foreign  nations,  among  the  States, 
and  with  the  Indian  tribes;  and  that  which  forbids  the  States  to 
levy  any  duty  of  tonnage  without  the  consent  of  Congress. 

We  shall  only  consider  the  question  raised  by  the  latter  clause. 

It  is  argued  in  support  of  the  validity  of  the  ordinance  that  the 

money  collected  under  it  is  only  a  compensation  for  the  use  of 

the  wharves  which  are  owned  by  the  city,  and  which  have  been 

built  and  are  kept  in  repair  l)y  the  city  corporation. 

Under  the  evidence  in  this  case  of  the  condition  of  the  levee 
and  banks  of  the  Mississippi  River  within  the  limits  of  the  city, 
to  which  the  language  of  the  ordinance  must  be  applied,  this 
contention  cannot  be  sustained.  It  is  in  proof  that  of  the  twenty 
miles  and  more  of  the  levee  and  banks  of  the  Mississippi  within 
the  city,  not  more  than  one-tenth  has  any  wharf,  and  that  vessels 
land  at  various  places  where  no  such  accommodations  exist. 
The  language  of  the  ordinance  covers  landing  anywhere  within 
the  city  Umits.  The  tax  is,  therefore,  collectible  for  vessels  which 
land  at  any  point  on  the  banks  of  the  river,  without  regard  to 
the  existence  of  the  wharves.  The  tax  is  also  the  same  for  a 
vessel  which  is  moored  in  any  part  of  the  port  of  New  Orleans, 
whether  she  ties  up  to  a  wharf  or  not,  or  is  located  at  the  shore 
or  in  the  middle  of  the  river.  A  tax  which  is,  by  its  terms,  due 
from  all  vessels  arriving  and  stopping  in  a  port,  without  regard 
to  the  place  where  they  may  stop,  whether  it  be  in  the  channel  of 
the  stream,  or  out  in  a  bay,  or  landed  at  a  natural  river-bank, 
cannot  be  treated  as  a  compensation  for  the  use  of  a  wharf. 
This  view  is  additionally  enforced  if,  as  stated  by  counsel  for 
the  plaintiff,  in  their  argument,  the  Supreme  Court  of  the  State 
has  decided  that,  under  the  act  of  1843  of  the  Louisiana  legisla- 
ture, no  wharfage  tax  or  duty  can  be  levied  or  collected  by  the 
city. 


814  EXPRESS  PROVISIONS  ON  TAXATION. 

We  are  of  opinion  that  upon  the  face  of  the  ordinance  itself,  as 
appUcd  to  the  recognized  condition  of  the  river  and  its  banks 
within  the  city,  the  dues  here  claimed  cannot  be  supported  as  a 
compensatioiL  for  the  use  of  the  city's  wharves,  but  that  it  is  a 
tax  upon  every  vessel  which  stops,  either  l^y  landing  or  mooring, 
in  the  waters  of  the  Mississippi  River  within  the  city  of  New 
Orleans,  for  the  privilege  of  so  landing  or  mooring. 

In  this  view  of  the  subject,  as  the  assessment  of  the  tax  is 
measured  by  the  tonnage  of  the  vessel,  it  falls  directly  within  the 
prohibition  of  the  Constitution,  namely,  "that  no  State  shall, 
without  the  consent  of  Congress,  lay  any  duty  of  tonnage." 
Whatever  more  general  or  more  limited  view  may  be  entertained 
of  the  true  meaning  of  this  clause,  it  is  perfectly  clear  that  a  duty 
or  tax  or  burden  imposed  under  the  authority  of  the  State,  which 
is,  by  the  law  imposing  it,  to  be  measured  by  the  capacity  of  the 
vessel,  and  is  in  its  essence  a  contribution  claimed  for  the  privi- 
lege of  arriving  and  departing  from  a  port  of  the  United  States, 
is  within  the  prohibition. 

There  have  been  several  cases  before  this  court  involving  the 
construction  of  this  provision.  The  more  recent  and  well  con- 
sidered of  these  are  The  Steamship  Company  v.  The  Portwardens, 
6  Wallace,  31,  The  State  Tonnage  Tax  Cases,  12  Id.  212,  and 
Peete  v.  Morgan,  19  Id.  581.  ..  . 

We  do  not  understand  that  this  principle  interposes  any  hin- 
drance to  the  recovery  from  any  vessel  landing  at  a  wharf  or  pier 
owned  by  an  individual  or  by  a  municipal  or  other  corporation, 
a  just  compensation  for  the  use  of  such  property.  It  is  a  doctrine 
too  well  settled,  and  a  practice  too  common  and  too  essential  to 
the  interests  of  commerce  and  navigation  to  admit  of  a  doubt, 
that  for  the  use  of  such  structures,  erected  by  individual  enter- 
prise, and  recognized  everywhere  as  private  property,  a  reason- 
able compensation  can  be  exacted.  And  it  may  be  safely 
admitted  also  that  it  is  within  the  power  of  the  State  to 
regulate  this  compensation,  so  as  to  prevent  extortion,  a  power 
which  is  often  very  properly  delegated  to  the  local  municipal 
authority. 

Nor  do  we  see  any  reason  why,  when  a  city  or  other  munici- 
paUty  is  the  owner  of  such  structures,  built  by  its  own  money,  to 
assist  vessels  landing  within  its  limits  in  the  pursuit  of  their  busi- 
ness, the  city  should  not  be  allowed  to  exact  and  receive  this 
reasonable  compensation  as  well  as  individuals.  But  in  the  exer- 
cise of  this  right  care  must  be  had  that  it  is  not  made  to  cover  a 


SPRINGER   V.    UNITED    STATES.  815 

violation  of  the  Federal  Constitution  in  the  point  under  con- 
sideration. 

We  are  better  satisfied  with  this  construction  of  the  Constitu- 
tion from  the  fact  that  this  is  one  of  the  few  limitations  of  that 
instrument  on  the  power  of  the  States  which  is  not  absolute,  but 
which  may  be  removed  wholly  or  modified  by  the  consent  of 

Congress. 

The  cases  which  have  recently  come  before  this  court  in  which 
the  State  by  itself  or  by  one  of  its  municipaUties  has  attempted 
to  levy  taxes  of  this  character,  clearly  within  the  letter  and  the 
spirit  of  the  constitutional  prohibition,  show  the  necessity  of  a 
rigid  adherence  to  the  demands  of  that  instrument.  If  hardships 
arise  in  the  enforcement  of  this  principle,  and  the  just  necessities 
of  a  local  commerce  require  a  tax  which  is  otherwise  forbidden,  it 
is  presumed  that  Congress  would  not  withhold  its  assent  if  prop- 
erly informed  and  its  consent  requested. 

This  is  a  much  wiser  course,  and  Congress  is  a  much  safer  de- 
positary of  the  final  exercise  of  this  important  power  than  the 
ill-regulated  and  overtaxed  towns  and  cities,  which  are  not  likely 
to  look  much  beyond  their  own  needs  and  their  own  interests. 

Wc  are  of  opinion  that  the  ordinance  under  which  the  levee 
dues  were  assessed  upon  the  plaintiff's  vessel  is  unconstitutional 
and  void.  Judgment  reversed.^  .  .  . 


SPRINGER  V.   UNITED  STATES. 
Supreme  Court  of  the  United  States.     1881. 

[102  United  States,  586.]  ^ 

Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
em  District  of  Illinois,  in  which  court  the  United  States  brought 
an  action  of  ejectment  against  Springer.  Under  the  acts  of  July  1, 
1862,  and  of  June  30,  1864,  as  amended  by  the  act  of  March  3, 

1  See  Packet  Company..  Keokuk,  95  U.  S.  80  (1877);  Transportation 
Company  t;.  Parkersburg,  107  U.  S.  691  (1883);  and  Huse  v.  Glover,  119 
U.  S.  543  (1886).  — Ed.  .        •    tj  ii    v 

2  The  statement  ha.s  been  rewritten  with  the  use  of  facts  given  m  Pollock  v. 
Farmers'  Loan  and  Trust  Co.,  157  U.  S.  429,  578-579  (1895).  -  Ed. 


810  EXPRESS   PROVISIONS  ON  TAXATION. 

1865,  the  collector  of  internal  revenue  had  contended  that  Springer 
was  subject  to  a  tax  on  income.  The  income  in  (lucstion  was 
derived  from  interest  on  United  States  bonds  and  from  profes- 
sional services  as  a  lawyer.  Payment  having  been  refused,  a  war- 
rant for  the  tax  and  penalty  had  l)een  levied  on  real  estate,  which 
was  advertised  and  sold,  the  United  States  becoming  the  pur- 
chaser and  receiving  from  the  collector  the  deed  under  which  the 
ejectment  was  brought.  At  the  trial  Springer,  on  the  ground  that 
the  tax  was  direct  and  was  not  levied  in  the  manner  prescribed  by 
the  Constitution,  objected  to  the  introduction  of  the  deed  in  evi- 
dence, and  to  the  court's  giving  certain  instructions  and  refusing 
to  give  others.  After  verdict  for  the  United  States  and  an  un- 
successful motion  for  a  new  trial,  this  WTit  of  error  was  sued  out. 

W.  M.  Springer,  -pro  se;  and  Smith,  Assistant  Attorney  Gen- 
eral, contra. 

SwAYNE,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Was  the  tax  here  in  question  a  direct  tax?  If  it  was,  not  having 
been  laid  according  to  the  requirements  of  the  Constitution,  it 
must  be  admitted  that  the  laws  imposing  it,  and  the  proceedings 
taken  under  them  by  the  assessor  and  collector  for  its  imposition 
and  collection,  were  all  void.  .  .  . 

In  the  twenty-first  number  of  the  Federalist,  Alexander  Ham- 
ilton, speaking  of  taxes  generally,  said:  "Those  of  the  direct  kind, 
which  principally  relate  to  land  and  buildings,  may  admit  of  a 
rule  of  apportionment.  Either  the  value  of  the  land,  or  the  number 
of  the  people,  may  serve  as  a  standard."  The  thirty-sixth  number 
of  that  work,  by  the  same  author,  is  devoted  to  the  sul)ject  of 
internal  taxes.  It  is  there  said:  "They  may  be  subdivided 
into  those  of  the  direct  and  those  of  the  indirect  kind."  In  this 
connection  land-taxes  and  poll-taxes  are  discussed.  The  former 
are  commended  and  the  latter  are  condemned.  Nothing  is  said 
of  any  other  direct  tax.  In  neither  case  is  there  a  definition  given 
or  attempted  of  the  phrase  "direct  tax."  .  .  . 

The  Constitution  went  into  operation  on  the  4th  of  March, 
1789. 

It  is  important  to  look  into  the  legislation  of  Congress  touch- 
ing the  subject  since  that  time.  .  . 

It  does  not  appear  that  any  tax  like  the  one  here  in  question 
was  ever  regarded  or  treated  by  Congress  as  a  direct  tax.  .  .  . 

The  question,  what  is  a  direct  tax,  is  one  exclusively  in  Ameri- 
can jurisprudence.  The  text-WTiters  of  the  country  are  in  entire 
accord  upon  the  subject. 


POLLOCK  V.    farmers'    LOAN  AND   TRUST  COMPANY.  817 

Mr.  Justice  Story  says  all  taxes  are  usually  divided  into  two 
classes,  —  those  which  are  direct  and  those  which  are  indirect,  — 
and  that  ''under  the  former  denomination  are  included  taxes' on 
land  or  real  property,  and,  under  the  latter,  taxes  on  consump- 
tion."    1  Const.,  sect.  950. 

Chancellor  Kent,  speaking  of  the  case  of  Hylton  v.  United 
States,  says:  "The  better  opinion  seemed  to  be  that  the  direct 
taxes  contemplated  by  the  Constitution  were  only  two;  viz.,  a 
capitation  or  poll  tax  and  a  tax  on  land."  1  Com.  257.  See 
also  Cooley,  Taxation,  p.  5,  note  2;  Pomeroy,  Const.  Law  157- 
Sharswood's  Blackstone,  308,  note;  Rawle,  Const.  30;  Sergeant' 
Const.  305. 

We  are  not  aware  that  any  writer,  since  Hylton  v.  United 
States  was  decided,  has  expressed  a  view  of  the  subject  different 
from  that  of  these  authors. 

Our  conclusions  are,  that  direct  taxes,  within  the  meaning  of 
the  Constitution,  are  only  capitation  taxes,  as  expressed  in  that 
mstrument,  and  taxes  on  real  estate;  and  that  the  tax  of  which 
the  plaintiff  in  error  complains  is  within  the  category  of  an  excise 
or  duty.  Pomeroy,  Const.  Law,  177;  Pacific  Ins.  Co.  v.  Soule,  7 
Wall.  433;  and  Scholey  v.  Rew,  23  Wall.  331.  ... 

Judgment  affirmed. 


POLLOCK  V.  FARMERS'  LOAN  AND  TRUST  COMPANY. 

Supreme  Court  of  the  United  States.     1895. 

[157  United  Stales,  429;  and,  on  rehearing,  158  id.  601.]  i 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

In  the  Circuit  Court  Pollock  filed  a  bill  against  the  Farmers' 
Loan  and  Trust  Company,  on  behalf  of  himself  and  other  stock- 
holders, praying  an  injunction  against  paying  the  income  tax 
under  the  act  of  Congress  of  Aug.  15,  1894  (28  Stat.  509).  The 
company's  income  was  derived  from  real  estate  and  municipal 
bontls.  The  bill  charged  that  the  statute  was  unconstitutional 
-1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


gl8  EXPRESS   PROVISIONS   ON   TAXATION. 

in  that  it  imposed  a  direct  tax,  and  in  that  it  imposed  a  tax  upon 
income  derived  from  bonds  issued  by  States,  counties,  and 
municipalities,  and  for  other  reasons.  The  bill  assured  that  the 
matter  in  dispute  exceeded  S5,000  and  arose  under  the  Consti- 
tution or  laws  of  the  United  States,  and  that  there  was  a  con- 
troversy between  citizens  of  different  States.  A  demurrer  to  the 
bill  was  sustained,  whereupon  an  appeal  to  the  Supreme  Court 
of  the  United  States  was  allowed. 

Tliis  case  was  argued  with  Hyde  v.  Continental  Trust  Co. 
and  Moore  v.  Miller.  The  decree  of  the  Circuit  Court  was  re- 
versed.   A  rehearing  was  granted.^ 

W.  D.  Guthrie,  G.  F.  Edmunds,  J.  H.  Choate,  and  others,  for 
appellants;  Richard  Olneij,  Attorney  GenerAl,  and  another, 
for  the  United  States,  by  leave  of  court;  and  J.  C.  Carter,  and 
others,  for  appellees. 

Fuller,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Our  previous  decision  was  confined  to  the  consideration  of  the 
validity  of  the  tax  on  the  income  from  real  estate,  and  on  the 
income  from  municipal  bonds.  The  question  thus  limited  was 
whether  such  taxation  was  direct  or  not,  in  the  meaning  of  the 
Constitution;  and  the  court  went  no  farther,  as  to  the  tax  on  the 
income  from  real  estate,  than  to  hold  that  it  fell  within  the  same 
class  as  the  source  whence  the  income  was  derived,  that  is,  that 
a  tax  upon  the  realty  and  a  tax  upon  the  receipts  therefrom  were 
alike  direct;  while  as  to  the  income  from  municipal  bonds,  that 
could  not  be  taxed  because  of  want  of  power  to  tax  the  source, 
and  no  reference  was  made  to  the  nature  of  the  tax  as  being 
direct  or  indirect. 

We  are  now  permitted  to  broaden  the  field  of  inquiry,  and  to 
determine  to  which  of  the  two  great  classes  a  tax  upon  a  person's 
entire  income,  whether  derived  from  rents,  or  products,  or  other- 
wise, of  real  estate,  or  from  bonds,  stocks,  or  other  forms  of  per- 
sonal property,  belongs.  .  .  . 

We  know  of  no  reason  for  holding  otherwise  than  that  the 
words  "direct  taxes,"  on  the  one  hand,  and  "duties,  imposts  and 
excises,"  on  the  other,  were  used  in  the  Constitution  in  their 
natural  and  obvious  sense.  Nor,  in  arriving  at  what  those  terms 
embrace,  do  we  perceive  any  ground  for  enlarging  them  beyond, 
or  narrowing  them  within,  their  natural  and  obvious  import  at 
the  time  the  Constitution  was  framed  and  ratified.  .  .  . 

In  the  light  of  the  struggle  in  the  convention  as  to  whether  or 

^  The  opinions  upon  the  original  hearing  have  been  omitted.  — ^d. 


POLLOCK   V.    farmers'    LOAN   AND    TRUST  COMPANY.  819 

not  the  new  Nation  should  be  empowered  to  le\y  taxes  directly 
on  the  individual  until  after  the  States  had  failed  to  respond  to 
requisitions  —  a  struggle  which  did  not  terminate  until  the 
amendment  to  that  effect,  proposed  by  Massachusetts  and  con- 
curred in  by  South  Carohna,  New  Hampshire,  New  York,  and 
Rhode  Island,  had  been  rejected  —  it  would  seem  beyond  reason- 
able question  that  direct  taxation,  taking  the  place  as  it  did  of 
requisitions,  was  purposely  restrained  to  apportionment  accord- 
ing to  representation,  in  order  that  the  former  system  as  to  ratio 
might  be  retained,  while  the  mode  of  collection  was  changed.  .  .  . 

The  reasons  for  the  clauses  of  the  Constitution  in  respect  of 
direct  taxation  are  not  far  to  seek.  The  States,  respectively, 
possessed  plenary  powers  of  taxation.  They  could  tax  the  prop- 
erty of  their  citizens  in  such  manner  and  to  such  extent  as  they 
saw  fit;  they  had  unrestricted  powers  to  impose  duties  or  imposts 
on  imports  from  abroad,  and  excises  on  manufactures,  consum- 
able commodities,  or  otherwise.  They  gave  up  the  great  sources 
of  revenue  derived  from  commerce;  they  retained  the  concurrent 
power  of  levying  excises,  and  duties  if  covering  anything  other 
than  excises;  but  in  respect  of  them  the  range  of  taxation  was 
narrowed  by  the  power  granted  over  interstate  commerce,  and  by 
the  danger  of  being  put  at  disadvantage  in  deahng  with  excises 
on  manufactures.  They  retained  the  power  of  direct  taxation,  and 
to  that  they  looked  as  their  chief  resource;  but  even  in  respect  of 
that,  they  granted  the  concurrent  power,  and  if  the  tax  were 
placed  by  both  governments  on  the  same  subject,  the  claim  of 
the  United  States  had  preference.  Therefore,  they  did  not  grant 
the  power  of  direct  taxation  without  regard  to  their  own  condi- 
tion and  resources  as  States;  but  they  granted  the  power  of  ap- 
portioned direct  taxation,  a  power  just  as  efficacious  to  serve  the 
needs  of  the  general  government,  but  securing  to  the  States  the 
opportunity  to  pay  the  amount  apportioned,  and  to  recoup  from 
their  own  citizens  in  the  most  feasible  way,  and  in  harmony  with 
their  systems  of  local  self-government.  .  .  . 

Moreover,  whatever  the  reasons  for  the  constitutional  provi- 
sions, there  they  are,  and  they  appear  to  us  to  speak  in  plain 
language. 

It  is  said  that  a  tax  on  the  whole  income  of  property  is  not  a 
direct  tax  in  the  meaning  of  the  Constitution,  but  a  duty,  and,  as 
a  duty,  leviable  without  apportionment,  whether  direct  or  indirect. 
We  do  not  think  so.  Direct  taxation  was  not  restricted  in  one 
breath,  and  the  restriction  blown  to  the  winds  in  another.  .  .  . 


820  EXPRESS   PROVISIONS  ON  TAXATION. 

The  Constitution  prohibits  any  direct  tax,  unless  in  proportion 
to  numbers  as  ascertained  by  the  census;  and,  in  the  hf^ht  of  the 
circumstances  to  which  we  have  referred,  is  it  not  an  evasion  of 
that  prohibition  to  hold  that  a  general  unapportioned  tax,  im- 
posed upon  all  property  owners  as  a  body  for  or  in  respect  of 
their  property,  is  not  direct,  in  the  meaning  of  the  Constitution, 
because  confined  to  the  income  therefrom?  .  .  . 

We  find  it  impossiV)le  to  hold  that  a  fundamental  requisition, 
deemed  so  important  as  to  be  enforced  by  two  provisions,  one 
affirmative  and  one  negative,  can  be  refined  away  by  forced  dis- 
tinctions between  that  which  gives  value  to  property,  and  the 
property  itself. 

Nor  can  we  perceive  any  ground  why  the  same  reasoning  does 
not  apply  to  capital  in  personalty  held  for  the  purpose  of  income 
or  ordinarily  yielding  income,  and  to  the  income  therefrom.  .  .  . 
Nor  are  we  impressed  with  the  contention  that,  because  in  the 
four  instances  in  which  the  power  of  direct  taxation  has  been 
exercised,  Congress  did  not  see  fit,  for  reasons  of  expediency,  to 
levy  a  tax  upon  personalty,  this  amounts  to  such  a  practical 
construction  of  the  Constitution  that  the  power  did  not  exist, 
that  we  must  regard  ourselves  bound  by  it.  We  should  regret  to 
be  compelled  to  hold  the  powers  of  the  general  government  thus 
restricted,  and  certainly  cannot  accede  to  the  idea  that  the  Con- 
stitution has  become  weakened  by  a  particular  course  of  inaction 
under  it. 

The  stress  of  the  argument  is  thrown,  however,  on  the  assertion 
that  an  income  tax  is  not  a  property  tax  at  all;  that  it  is  not  a 
real  estate  tax,  or  a  crop  tax,  or  a  bond  tax;  that  it  is  an  assess- 
ment upon  the  taxpayer  on  account  of  his  money-spending  power 
as  shown  by  his  revenue  for  the  year  preceding  the  assessment; 
that  rents  received,  crops  harvested,  interest  collected,  have  lost 
all  connection  with  their  origin,  and  although  once  not  taxable 
have  become  transmuted  in  their  new  form  into  taxable  subject- 
matter;  in  other  words,  that  income  is  taxable  irrespective  of  the 
source  from  whence  it  is  derived.  .  .  . 

We  have  unanimously  held  in  this  case  that,  so  far  as  this  law 
operates  on  the  receipts  from  municipal  bonds,  it  cannot  be  sus- 
tained, because  it  is  a  tax  on  the  power  of  the  States,  and  on  their 
instrumentalities  to  borrow  money,  and  consequently  repugnant 
to  the  Constitution.  But  if,  as  contended,  the  interest  when 
received  has  become  merely  money  in  the  recipient's  pocket, 
and  taxable  as  such  without  reference  to  the  source  from  which 


POLLOCK  V.   farmers'   LOAN  AND  TRUST  COMPANY.  821 

it  came,  the  question  is  immaterial  whether  it  could  have  been 
originally  taxed  at  all  or  not.  This  was  admitted  by  the  Attorney 
General  with  characteristic  candor;  and  it  follows  that,  if  the 
revenue  derived  from  municipal  bonds  cannot  be  taxed  because 
the  source  cannot  be,  the  same  rule  applies  to  revenue  from  any 
other  source  not  subject  to  the  tax;  and  the  lack  of  power  to 
levy  any  but  an  apportioned  tax  on  real  and  personal  property 
equally  exists  as  to  the  revenue  therefrom. 

Admitting  that  this  act  taxes  the  income  of  property  irrespec- 
tive of  its  source,  still  we  cannot  doubt  that  such  a  tax  is  neces- 
sarily a  direct  tax  in  the  meaning  of  the  Constitution.  . 

We  have  considered  the  act  only  in  respect  of  the  tax  on  in- 
come derived  from  real  estate,  and  from  invested  personal  prop- 
erty, and  have  not  commented  on  so  much  of  it  as  bears  on  gains 
or  profits  from  business,  privileges,  or  employments,  in  view  of 
the  instances  in  which  taxation  on  business,  privileges,  or  em- 
ployments has  assumed  the  guise  of  an  excise  tax  and  been  sus- 
tained as  such. 

Being  of  opinion  that  so  much  of  the  sections  of  this  law  as 
lays  a  tax  on  income  from  real  and  personal  property  is  invalid, 
we  are  brought  to  the  question  of  the  effect  of  that  conclusion 
upon  these  sections  as  a  whole.    .  .  . 

All  those  sections,  constitutmg  one  entire  scheme  of  taxation, 
are  necessarily  invalid. 

The  decrees  hereinbefore  entered  in  this  court  will  he  vacated; 
the  decrees  below  will  be  reversed,  and  the  cases  remanded, 
ivith  instructions  to  grant  the  relief  prayed.^ 

Harlan,  J.,  dissenting.  .  .  . 

Brown,  J.,  dissenting.  .  .  . 

Jackson,  J.,  dissenting.  .  .  . 

White,  J.,  dissenting,  .  .  . 

*  See  the  Sixteenth  Amendment. 

Compare  Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397  (1904) 
—  Ed. 


i^22  EXPRESS  PROVISIONS  ON  TAXATION. 

NICOL  V.   AMES. 
Supreme  Court  of  the  United  States.     1899. 

[173  United  Slates,  509.)  > 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  lUinois. 

Nicol  petitioned  the  Circuit  Court  for  a  writ  of  habeas  corpus, 
allesing  that  he  had  been  convicted  in  the  District  Court  of  the 
United  States  for  the  Northern  District  of  Ilhnois  upon  an 
information  charging  him  with  selhng  two  carloads  of  oats  at 
the  Chicago  Board  of  Trade  without  dchvering  to  the  buyer  a 
memorandum.  Among  the  stamp  taxes  in  the  war  revenue  act 
of  1898  (30  Stat.  448)  was  specified  ''upon  each  sale  ...  or 
agreement  to  sell  any  products  or  merchandise  at  any  exchange 
or  board  of  trade,  or  other  similar  place,  ...  for  each  .SlOO  in 
value  .  .  .,  one  cent,  .  .  .  Provided,  That  on  every  sale  ...  or 
agreement  to  sell  as  aforesaid,  there  shall  be  made  and  delivered 
by  the  seller  to  the  buyer  a  bill,  memorandum,  agreement,  or 
other  evidence  ...  to  which  there  shall  be  affixed  a  lawful 
stamp  or  stamps."  A  breach  was  made  a  misdemeanor,  pun- 
ishable with  fine  or  imprisonment  or  both.  Nicol  had  been  sen- 
tenced to  pay  a  fine  and  to  be  imprisoned  until  payment;  and 
on  refusing  to  pay  the  fine  he  had  been  taken  into  custody. 
The  Circuit  Court  held  the  statute  constitutional,  discharged 
the  writ,  and  remanded  the  petitioner  to  the  custody  of  the 
marshal.  The  appeal  to  the  Supreme  Court  was  argued  along 
with  three  other  cases. 

I    H.  S.  Rohhins  and  others,  for  appellants;   and  J.  K.  Richards, 
Solicitor  General,  contra. 

Peckham,  J.,  .  .  .  delivered   the   opinion   of   the   court.  .  .  . 

Direct  taxes  must  be  apportioned,  while  indirect  taxes  must 
be  uniform  throughout  the  United  States.  But  while  yielding 
impUcit  obedience  to  these  constitutional  requirements,  it  is  no 
part  of  the  duty  of  this  court  to  lessen,  impede,  or  obstruct  the 
exercise  of  the  taxing  power  by  merely  abstruse  and  subtle 
distinctions  as  to  the  particular  nature  of  a  specified  tax, 
where  such  distinction  rests  more  upon  the  differing  theories 
of  political  economists  than  upon  the  practical  nature  of  the 
tax  itself. 

In  deciding  upon  the  vaUdity  of  a  tax  with  reference  to  these 

1  The  statement  has  not  been  reprinted.  —  Ed. 


NICOL   V.   AMES.  823 

requirements,  no  microscopic  examination  as  to  the  purely 
economic  or  theoretical  nature  of  the  tax  should  be  indulged  in 
for  the  purpose  of  placing  it  in  a  category  which  would  invahdate 
the  tax.  As  a  mere  abstract,  scientific,  or  economical  problem, 
a  particular  tax  might  possibly  be  regarded  as  a  direct  tax,  when 
as  a  practical  matter  pertaining  to  the  actual  operation  of  the  tax 
it  might  quite  plainly  appear  to  be  indirect.  .  .  . 

We  will  now  examine  the  several  objections  that  have  been 
offered  to  this  statute.  .  .  . 

It  is  asserted  to  be  a  direct  tax,  because  it  is  a  tax  upon  the 
sale  of  property  measured  by  the  value  of  the  thing  sold,  and  such 
a  tax  is  a  direct  tax  upon  the  property  itself,  and  therefore  sub- 
ject to  the  rule  of  apportionment.  Various  cases  are  cited,  from 
Brown  v.  Maryland,  12  Wheat.  419,  down  to  those  involving  the 
validity  of  the  income  tax,  157  U.  S.  429;  158  U.  S.  601,  for 
the  purpose  of  proving  the  correctness  of  this  proposition.  All  the 
cases  involved  the  question  whether  the  taxes  to  which  objection 
was  taken  amounted  practically  to  a  tax  on  the  property.  If  this 
tax  is  not  on  the  property  or  on  the  sale  thereof,  then  these  cases 
do  not  apply. 

We  think  the  tax  is  in  effect  a  duty  or  excise  laid  upon  the 
privilege,  opportunity,  or  faciUty  offered  at  boards  of  trade  or 
exchanges  for  the  transaction  of  the  business  mentioned  in  the 
act.  It  is  not  a  tax  upon  the  business  itself  which  is  so  transacted, 
but  it  is  a  duty  upon  the  facilities  made  use  of  and  actually  em- 
ployed in  the  transaction  of  the  business,  and  separate  and  apart 
from  the  business  itself.  It  is  not  a  tax  upon  the  members  of  the 
exchange  nor  upon  membership  therein,  nor  is  it  a  tax  upon  sales 
generally.  The  act  limits  the  tax  to  sales  at  any  exchange,  or  board 
of  trade,  or  other  similar  place,  and  its  fair  meaning  is  to  impose 
a  duty  upon  those  privileges  or  facihties  which  are  there  found 
and  made  use  of  in  the  sale  at  such  place  of  any  product  or  mer- 
chandise. Whether  this  faciUty  or  privilege  is  such  a  thing  as 
caii  be  legally  taxed,  while  leaving  untaxed  all  other  sales  made 
outside  of  such  places,  will  be  discussed  further  on.  At  present  it 
is  enough  to  say  that  the  tax  is  not  upon  the  property  sold,  and 
cannot  on  that  ground  be  found  to  be  direct.  .  .  .  The  amount 
of  such  a  tax  when  imposed  in  a  case  hke  this  may  be  increased 
or  diminished  by  the  extent  to  which  the  privilege  or  facihty 
is  used,  and  it  is  measured  in  this  act  by  the  value  of  the  property 
transferred  by  means  of  using  such  pri\'ilege  or  facihty,  but  this 
does  not  make  the  tax  a  direct  one.  .  .  . 


824  EXPRESS   PROVISIONS  ON  TAXATION. 

It  is  also  said  that  the  tax  is  direct  because  it  cannot  be  added 
to  the  price  of  the  thing  sold,  and  therefore  ultimately  paid  by  the 
consumer.  In  other  words,  that  it  is  direct  because  the  owner 
cannot  shift  the  payment  of  the  amount  of  the  tax  to  some  one 
else.  This  however  assumes  that  the  tax  is  not  in  the  nature  of  a 
duty  or  an  excise,  but  that  it  is  laid  directly  upon  the  property 
sold,  which  we  hold  is  not  the  case.  It  is  not  laid  upon  the  prop- 
erty at  all,  nor  upon  the  profits  of  the  sale  thereof,  nor  ui)()n  the 
sale  itself  considered  separate  and  apart  from  the  place  antl  the 
circumstances  of  the  sale.  .  .  . 

Passing  these  grounds  of  objection,  it  is  urged  that  if  this  is 
an  indirect  tax,  it  is  not  uniform  throughout  the  United  States 
as  required  by  the  Constitution.  Sales  at  an  exchange  or  board 
of  trade,  it  is  said,  are  singled  out  for  taxation  under  this  act, 
although  they  differ  in  no  substantial  respect  from  sales  at  other 
places,  and  there  is  therefore  no  just  ground  for  segregating  or 
classifying  such  sales  from  those  made  elsewhere.  .  .  . 

This  general  objection  on  the  ground  of  want  of  uniformity 
is  not,  in  our  judgment,  well  founded.  Whether  the  word  "uni- 
form" is  to  be  understood  in  what  has  been  ^termed  its  "geo- 
graphical" sense,  or  as  meaning  uniformity  as  to  all  the  taxpayers 
similarly  situated  with  regard  to  the  subject-matter  of  the  tax, 
we  think  this  tax  is  valid  within  either  meaning  of  the  term. 
In  our  judgment  a  sale  at  an  exchange  does  form  a  proper  basis 
for  a  classification  which  excludes  all  sales  made  elsewhere  from 
taxation.  .  .  . 

A  tax  upon  the  privilege  of  selling  property  at  the  exchange 
and  of  thus  using  the  facilities  there  offered  in  accomplishing 
the  sale  differs  radically  from  a  tax  upon  every  sale  made  in  any 
place.  The  latter  tax  is  really  and  practically  upon  property. 
It  takes  no  notice  of  any  kind  of  privilege  or  facility,  and  the  fact 
of  a  sale  is  alone  regarded.  Although  not  created  by  government, 
this  privilege  or  facility  in  effecting  a  sale  at  an  exchange  is  so  dis- 
tinct and  definite  in  its  character,  and  constitutes  so  clear  and  plain 
a  difference  from  a  sale  elsewhere,  as  to  create  a  reasonable  and 
substantial  ground  for  classification  and  for  taxation  when  similar 
sales  at  other  places  are  untaxed.  A  sale  at  an  exchange  differs 
from  a  sale  made  at  a  man's  private  office,  or  on  his  farm,  or  by 
a  partnership,  because,  although  the  subject-matter  of  the  sale 
may  be  the  same  in  each  case,  there  are  at  an  exchange  certain 
advantages  in  the  way  of  finding  a  market,  obtaining  a  price,  the 
saving  of  time,  and  in  the  security  of  payment,  and  other  matters, 


NICOL  V.    AMES.  825 

which  are  more  easily  obtained  there  than  at  an  office  or  upon 
a  farm.  .  .  . 

In  this  case  there  is  that  uniformity  which  the  Constitution 
requires.  The  tax  or  duty  is  uniform  throughout  the  United  States, 
and  it  is  uniform,  or,  in  other  words,  equal,  upon  all  who  avail 
themselves  of  the  privileges  or  facilities  offered  at  the  exchanges, 
and  it  is  not  necessary  in  order  to  be  uniform  that  the  tax  should 
be  levied  upon  all  who  make  sales  of  the  same  kind  of  things 
whether  at  an  exchange  or  elsewhere. 

Another  oVjjection  taken  is  that  Congress  taxes  only  those 
who  make  sales  and  not  those  who  make  purchases,  and  those 
who  sell  products  or  merchandise  and  not  those  who  sell  bonds, 
stocks,  etc.  These  are  discriminations,  it  is  said,  which  do  not 
follow  the  rule  of  uniformity,  and  hence  render  the  tax  void. 

A  purchase  occurs  whenever  a  sale  is  effected,  and  to  say  that 
a  purchaser  at  an  exchange  sale  must  be  taxed  for  the  faciUties 
made  use  of  in  making  the  purchase,  or  else  that  the  tax  on  the 
seller  is  void,  is  simply  to  insist  upon  doubUng  the  tax. 

Nor  is  it  necessary  to  tax  the  use  of  the  privilege  under  all  cir- 
cumstances in  order  to  render  the  tax  valid  upon  its  use  in  par- 
ticular cases.  We  see  no  reason  why  it  should  be  necessary  to  tax  a 
privilege  whenever  it  is  used  for  any  purpose,  or  else  not  to  tax 
it  at  all.  It  is  not  in  its  nature  indivisible.  A  tax  upon  the  privi- 
lege when  used  for  one  purpose  does  not  require  for  its  validity 
that  the  same  privilege  should  also  be  taxed  when  used  for 
another  and  a  totally  distinct  purpose.  .  .  . 

It  is  also  objected  that  there  is  no  power  in  Congress  to  require 
a  party  seUing  personal  property,  in  the  course  of  commerce 
within  the  State,  to  make  a  written  note  or  memorandum  of  the 
contract,  and  to  punish  him  by  fine  and  imprisonment  for  a 
failure  to  do  so;  if  the  State  do  not  require  a  memoranrlum  on  a 
sale,  Congress  cannot  in  the  exercise  of  the  taxing  power  compel 
a  citizen  to  make  one  in  order  that  it  may  be  taxed  by  the  United 
States. 

In  holding  that  the  tax  under  consideration  is  a  tax  on  the 
privilege  used  in  making  sales  at  an  exchange,  we  thereby  hold 
that  it  is  not  a  tax  upon  the  memorandum  required  by  the  statute 
upon  which  the  stamp  is  to  be  placed.  The  act  does  not  assume 
to  in  any  manner  interfere  with  the  laws  of  the  State  in  relation 
to  the  contract  of  sale.  The  memorandum  required  does  not 
contain  all  the  essentials  of  a  contract  to  sell.  It  need  not  be 
signed,  and  it  need  not  contain  the  name  of  the  vendee  or  the 


826  EXPRESS   PROVISIONS   ON   TAXATION. 

terms  of  payment.  The  statute  does  not  render  a  sale  void  with- 
out the  memorandum  or  stamp,  which  by  the  hiws  of  the  State 
would  otherwise  be  valid..  It  does  not  assume  to  enact  anything 
in  opposition  to  the  law  of  any  State  upon  the  subject  of  sales. 
It  provides  for  a  written  memorandum  containing  the  matters 
mentioned,  simply  as  a  means  of  identifying  the  sale  and  for 
collecting  the  tax  by  means  of  the  required  stamp,  and  for  that 
purpose  it  secures  by  proper  penalties  the  making  of  the  memo- 
randum. Instead  of  a  memorandum,  Congress  might  have 
required  a  sworn  report  with  the  proper  amount  of  stamps  thereon 
to  be  made  at  certain  regular  intervals,  of  all  sales  made  subject 
to  the  tax.  Other  means  might  have  been  resorted  to  for  the  same 
purpose.  Whether  the  means  adopted  were  the  best  and  most 
convenient  to  accomplish  that  purpose  was  a  question  for  the 
judgment  of  Congress,  and  its  decision  must  be  conclusive  in  that 
respect,  .  .  . 
Brown  and  White,  JJ.,  concurred  in  the  result. 


KNOWLTON  V.  MOORE. 
Supreme  Court  of  the  United  States.     1900. 

[178  United  Slates,  41.] » 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  New  York. 

By  the  act  of  Congress  of  June  13,  1898  (20  Stat.  448)  it  was 
enacted  (sec.  29)  that  "any  person  or  persons  having  in  charge  .  .  . 
as  administrators,  executors  or  trustees,  any  legacies  or  distribu- 
tive shares  arising  from  personal  property,  where  the  whole 
amount  of  such  personal  property  as  aforesaid  shall  exceed  .  .  . 
$10,000,  .  .  .  passing  ...  by  will  or  by  the  intestate  laws  of 
any  State  or  Territory,  or  any  personal  property  .  .  .  trans- 
ferred by  deed,  .  .  .  sale  or  gift,  ...  to  take  effect  .  .  .  after 
the  death  of  the  grantor  or  bargainor,  .  .  .  shall  be  subject  to  a 
duty  or  tax,  ...  as  follows  .  .  .  :  where  the  whole  amount  of 
said  personal  property  shall  exceed  .  .  .  $10,000,  and  shall  not 

^  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


KNOWLTON   V.   MOORE.  827 

exceed  .  .  .  S25,000,  the  tax  shall  he  — First.  Where  the  per- 
son ..  .  entitled  to  any  .  .  .  interest  in  such  property  shall  be 
the  hneal  issue  or  lineal  ancestor,  brother  or  sister,  .  .  .  sevent}'- 
five  cents  for  each  .  .  .  $100  ...  of  such  interest  in  such  prop- 
erty. .  .  .  Fifth.  Where  the  person  .  .  .  entitled  to  any  .  .  . 
interest  in  such  property  .  .  .  shall  be  a  stranger  in  blood  .  .  . 
or  .  .  .  a  body  politic  or  corporate,  .  .  .  five  dollars  for  each  .  .  . 
$100  ...  of  such  interest.  .  .  .  Where  the  amount  ...  of  said 
property  shall  exceed  .  .  .  $25,000,  but  shall  not  exceed  .  .  . 
$100,000,  the  rates  .  .  .  shall  be  multiphed  by  one  and  one  half, 
.  .  .  and  where  the  amount  ...  of  said  property  shall  exceed 
.  .  .  $1,000,000,  such  rates  .  .  .  shall  be  multiplied  by  three." 
A  testator  died  in  the  State  of  New  York,  where  he  was  domiciled, 
and  in  his  personal  estate  (1)  a  daughter  w^as  entitled  to  $1,731,- 
996.35,  (2)  a  brother  to  $100,  (3)  a  sister  to  $5,000,  (4)  a  brother 
to  $100,000,  and  (5)  a  church  to  $5,000.  The  collector  demanded 
from  the  executors  $2.25  for  each  $100  of  the  first  four  items  and 
$15  for  each  $100  of  the  fifth  item.  The  executors  protested  that 
the  act  was  unconstitutional  and  that  the  act  exacted  nothing  for 
the  second,  third,  and  fifth  items,  and  only  $1.12^^  for  each  $100 
of  the  fourth  item.  They  paid,  however,  and  obtained  a  receipt 
reciting  that  they  paid  under  protest  to  avoid  compulsory  process. 
In  the  Circuit  Court  the  executors  brought  suit  against  the  col- 
lector to  recover  the  amount  paid.    A  demurrer  was  sustained. 

J.  G.  Carlisle  and  others,  for  plaintiffs  in  error;  and  J.  K.  Rich- 
ards, Sohcitor  General,  contra. 

White,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

We  shall  first,  in  a  general  way,  consider  upon  what  rights  or 
objects  death  duties,  as  they  are  termed  in  England,  are  imposed. 
Having,  from  a  review  of  the  history  of  such  taxes,  reached  a  con- 
clusion on  this  subject,  we  shall  decide  whether  Congress  has 
power  to  le\T  such  taxes.  This  being  settled,  we  shall  analyze  the 
particular  act  under  review,  for  the  purpose  of  ascertaining  the 
precise  form  of  tax  for  which  it  provides  and  the  mode  of  assess- 
ment which  it  directs.  These  questions  being  disposed  of,  we  shall 
determine  whether  the  taxes  which  the  act  imposes  are  void,  be- 
cause not  apportioned  or  for  the  want  of  uniformity. 

It  is  conceded  on  all  sides  that  the  levy  and  collection  of  some 
form  of  death  duty  is  provided  by  the  sections  of  the  law  in 
question.  .  .  .  Taxes  of  this  general  character  are  universally 
deemed  to  relate,  not  to  property  eo  nomine,  but  to  its  passage  by 
will  or  by  descent  in  cases  of  intestacy,  as  distinguished  from  taxes 


828  EXPRESS   PROVISIONS   ON   TAXATION. 

imposed  on  property,  real  or  personal  as  such,  because  of  its  own- 
ership and  possession.  .  .  . 

Having  ascertained  the  nature  of  death  duties,  the  first  question 
which  arises  is  this:  Can  the  Congress  of  the  United  States  levy 
a  tax  of  that  character?  The  proposition  that  it  cannot  rests 
upon  the  assumption  that,  since  the  transmi.ssion  of  property  by 
death  is  exclusively  subject  to  the  regulating  authority  of  the 
several  States,  therefore.the  levy  by  Congress  of  a  tax  on  inheri- 
tances or  legacies,  in  any  form,  is  beyond  the  power  of  Congress, 
and  is  an  interference  by  the  National  government  \nth  a  matter 
which  falls  alone  within  the  reach  of  State  legislation.  It  is  to  be 
remarked  that  this  proposition  denies  to  Congress  the  right  to 
tax  a  subject-matter  which  was  conceded  to  be  within  the  scope  of 
its  power  very  early  in  the  history  of  the  government.  The  act 
of  1797,  which  ordained  legacy  taxes,  was  adopted  at  a  time 
when  the  founders  of  our  government  and  framers  of  our  Consti- 
tution were  actively  participating  in  public  affairs,  thus  giving  a 
practical  construction  to  the  Constitution  which  they  had  helped 
to  estabUsh.  ...  It  is,  moreover,  worthy  of  remark  that  similar 
taxes  have  at  other  periods  and  for  a  considerable  time  been 
enforced;  and,  although  their  constitutionahty  was  assailed  on 
other  grounds  held  unsound  by  this  court,  the  question  of  the 
want  of  authority  of  Congress  to  \e\y  a  tax  on  inheritances  and 
legacies  was  never  urged  against  the  acts  in  question.  .   .  . 

Confusion  of  thought  may  arise  unless  it  be  always  remem- 
bered that,  fundamentally  considered,  it  is  the  power  to  transmit 
or  the  transmission  or  receipt  of  property  by  death  which  is  the 
subject  levied  upon  by  all  death  duties.  The  quahfication  of 
such  taxes  as  pri^'ilege  taxes,  or  describing  them  as  levied  on  a 
privilege,  may  also  produce  misconception,  unless  the  import  of 
these  words  be  accurately  understood.  Thej'  have  been  used 
where  the  power  of  a  State  government  to  levy  a  particular  form  of 
inheritance  or  legacy  tax  has  in  some  instances  been  assailed 
because  of  a  constitutional  limitation  on  the  taxing  power.  Under 
these  circumstances,  the  question  has  arisen  whether,  because  of 
the  power  of  the  State  to  regulate  the  transmission  of  property  by 
death,  there  did  not  therefore  exist  a  less  trammeled  right  to  tax 
inheritances  and  legacies  than  obtained  as  to  other  subject-matters 
of  taxation,  and,  upon  the  afl&rmative  \-iew  being  adopted,  a  tax 
upon  inheritances  or  legacies  for  this  reason  has  been  spoken  of  as 
pri\'ilege  taxation,  or  a  tax  on  pri\-ileges.  .  .  . 

Of  course,  in  considering  the  power  of  Congress  to  impose  death 


KNOWLTON   V.   MOORE.  829 

duties,  we  eliminate  all  thought  of  a  greater  pri\'ilege  to  do  so 
than  exists  as  to  any  other  form  of  taxation,  as  the  right  to  regu- 
late successions  is  vested  in  the  States  and  not  in  Congress. 

It  is  not  denied  that,  subject  to  a  compUance  with  the  Umita- 
tions  in  the  Constitution,  the  taxing  power  of  Congress  extends  to 
all  usual  objects  of  taxation.  .  .  .  The  hmitation  which  would 
exclude  from  Congress  the  right  to  tax  inheritances  and  legacies 
is  made  to  depend  upon  the  contention  that  as  the  power  to 
regulate  successions  is  lodged  solely  in  the  several  States,  there- 
fore Congress  is  without  authority  to  tax  the  transmission  or 
receipt  of  property  by  death.  This  proposition  is  supported  by 
a  reference  to  decisions  holding  that  the  several  States  cannot 
tax  or  otherwise  impose  burdens  on  the  exclusive  powers  of  the 
National  government  or  the  instrumentahties  employed  to  carry 
such  powers  into  execution,  and,  conversely,  that  the  same  hm- 
itation rests  upon  the  National  government  in  relation  to  the 
powers  of  the  several  States.  Weston  v.  Charleston,  2  Pet.  449; 
McCuIloch  V.  Maryland,  4  ^Vheat.  316,  431,  439;  Bank  of  Com- 
merce V.  New  York  City,  2  Black,  620;  Collector  v.  Day,  11 
Wall.  113,  124;  United  States  v.  Railroad  Co.,  17  Wall.  322,  327; 
Railroad  Co.  v.  Peniston,  18  Wall.  5. 

But  the  fallacy  which  underhes  the  proposition  contended  for 
is  the  assumption  that  the  tax  on  the  transmission  or  receipt  of 
property  occasioned  by  death  is  imposed  on  the  exclusive  power 
of  the  State  to  regulate  the  devolution  of  property  upon  death. 
The  thing  forming  the  universal  subject  of  taxation  upon  which 
inheritance  and  legacy  taxes  rest  is  the  transmission  or  receipt, 
and  not  the  right  existing  to  regulate.  In  legal  effect,  then,  the 
proposition  upon  which  the  argument  rests  is  that  wherever  a 
right  is  subject  to  exclusive  regulation,  by  either  the  govern- 
ment of  the  United  States  on  the  one  hand  or  the  several  States 
on  the  other,  the  exercise  of  such  rights  as  regulated  can  alone 
be  taxed  by  the  government  having  the  mission  to  regulate. 
But  when  it  is  accurately  stated,  the  proposition  denies  the  au- 
thority of  the  States  to  tax  objects  which  are  confessedly  within 
the  reach  of'  their  taxing  power,  and  also  excludes  the  National 
government  from  almost  every  subject  of  direct  and  many  ac- 
knowledged objects  of  indirect  taxation.  Thus  imports  are  ex- 
clusively within  the  taxing  power  of  Congress.  Can  it  be  said 
that  the  property  when  imported  and  commingled  with  the  goods 
of  the  State  cannot  be  taxed,  because  it  had  been  at  some  prior 
time  the  subject  of  exclusive  regulation  by  Congress?     Again, 


830  EXPRESS   PROVISIONS   ON   TAXATION. 

interstate  commerce  is  often  within  the  exclusive  regulating  power 
of  Congress.  Can  it  be  asserted  that  the  property  of  all  persons  or 
corporations  engaged  in  such  commerce  is  not  the  subject  of  taxa- 
tion by  the  several  States,  because  Congress  may  regulate  inter- 
state commerce?  Conveyances,  mortgages,  leases,  pledges,  and, 
indeed,  all  property  and  the  contracts  which  arise  from  its  owner- 
ship, are  subject  more  or  less  to  State  regulation,  exclusive  in  its 
nature.  If  the  proposition  here  contended  for  be  sound,  such 
property  or  deahngs  in  relation  thereto  cannot  be  taxed  by  Con- 
gress, even  in  the  form  of  a  stamp  duty.  It  cannot  be  doubted 
that  the  argument  when  retluced  to  its  essence  demonstrates  its 
own  unsoundness,  since  it  leads  to  the  necessary  conclusion  that 
both  the  National  and  State  governments  are  divested  of  those 
powers  of  taxation  which  from  the  foundation  of  the  government 
admittedly  have  belonged  to  them.  Certainly,  a  tax  placed  upon 
an  inheritance  or  legacy  diminishes,  to  the  extent  of  the  tax,  the 
value  of  the  right  to  inherit  or  receive,  but  this  is  a  burden  cast 
upon  the  recipient  and  not  upon  the  power  of  the  State  to  regu- 
late. This  distinction  shows  the  inapplicaljility  to  the  case  in  hand 
of  the  statement  made  by  Mr.  Chief  Justice  ]\Iarshall  in  McCul- 
loch  V.  Maryland,  4  Wheat.  316,  431,  "that  the  power  to  tax  in- 
volves the  power  to  destroy."  This  principle  is  pertinent  only 
when  there  is  no  power  to  tax  a  particular  subject,  and  has  no 
relation  to  a  case  where  such  right  exists.  In  other  words,  the 
power  to  destroy  which  may  be  the  consequence  of  taxation  is 
a  reason  why  the  right  to  tax  should  be  confined  to  subjects 
which  may  be  lawfully  embraced  therein,  even  although  it  hap- 
pens that  in  some  particular  instance  no  great  harm  may  be 
caused  by  the  exercise  of  the  taxing  authority  as  to  a  subject 
which  is  beyond  its  scope.  But  this  reasoning  has  no  application 
to  a  lawful  tax,  for  if  it  had  there  would  be  an  end  of  all  taxa- 
tion; that  is  to  say,  if  a  lawful  tax  can  be  defeated  because  the 
power  which  is  manifested  by  its  imposition  may  when  further 
exercised  be  destructive,  it  w^ould  follow  that  every  lawful  tax 
would  become  unlawful,  and  therefore  no  taxation  whatever 
could  be  levied.  Under  our  constitutional  system  both  the 
National  and  the  State  governments,  moving  in  their  respective 
orbits,  have  a  common  authority  to  tax  many  and  diverse  ob- 
jects, but  this  does  not  cause  the  exercise  of  its  lawful  attributes 
by  one  to  be  a  curtailment  of  the  powers  of  government  of  the 
other,  for  if  it  did  there  would  practically  be  an  end  of  the  dual 
system  of  government  which  the  Constitution  established.  .  .  . 


KNOWLTON   V.   MOORE.  831 

We  are  then  brought  to  a  consideration  of  the  particular  form 
of  death  duty,  which  is  manifested  by  the  statute  under  consid- 
eration. .  .  . 

.    The  statute  clearly  imposes  the  duty  on  particular  legacies  or 
distributive  shares,  and  not  on  the  whole  personal  estate.  .  .  . 

The  tax  being  then  on  the  legacies  and  distributive  shares,  the 
rate  primarily  being  determined  by  the  relation  of  the  legatees 
or  distributees  to  the  estate,  does  the  law  command  that  the 
progressive  rate  of  tax  which  it  imposes  on  the  legacies  or  dis- 
tributive shares  shall  be  measured,  not  separately  by  the  amount 
of  each  particular  legacy  or  distributive  share,  but  by  the  sum  of 
the  whole  personal  estate?  This,  as  we  have  said,  is  the  interpre- 
tation of  the  act  which  was  adopted  by  the  assessor  in  le\'3dng 
the  taxes  under  review,  and  which  was  sustained  by  the  court 
below.  .  .  . 

As  we  understand  the  law,  we  are  clearly  of  opinion  that  it 
does  not  sustain  the  construction  which  was  placed  on  it.  .  .  . 

The  precise  meaning  of  the  law  being  thus  determined,  the 
question  whether  the  tax  which  it  imposes  is  direct,  and  hence 
subject  to  the  requirement  of  apportionment,  arises  for  consid- 
eration. That  death  duties,  generally,  have  been  from  the  be- 
ginning in  all  countries  considered  as  different  from  taxes  levied 
on  property,  real  or  personal,  directly  on  account  of  the  owner- 
ship and  possession  thereof,  is  demonstrated  by  the  review  which 
we  have  previously  made.  It  has  also  been  estabhshed  by  what 
we  have  heretofore  said,  that  such  taxes,  almost  from  the  begin- 
ning of  our  national  life,  have  been  treated  as  duties,  and  not  as 
direct  taxes.  Of  course,  they  concern  the  passing  of  property  by 
death,  for  if  there  was  no  property  to  transmit,  there  would  be 
nothing  upon  which  the  tax  levied  on  the  occasion  of  death  could 
be  computed.  This  legislative  and  administrative  view  of  such 
taxes  has  been  directly  upheld  by  this  court.  .  .  .^ 

Concluding,  then,  that  the  tax  under  consideration  is  not 
direct  within  the  meaning  of  the  Constitution,  but,  on  the  con- 
trary, is  a  duty  or  excise,  we  are  brought  to  consider  the  ques- 
tion of  uniformity. 

The  contention  is  that  because  the  statute  exempts  legacies 
and  distributive  shares  in  personal  property  below  ten  thou- 
sand dollars,  because  it  classifies  the  rate  of  tax  according  to  the 
relationship  or  absence  of  the  relationship  of  the  taker  to  the 

>  Here  were  discussed  Scholey  t^.  Rew,  23  Wall.  331  (1875);  and  Pollock 
V.  Farmers'  Loan  and  Trust  Co.,  ante,  p.  817  (1895).  —  Ed. 


832  EXPRESS  PROVISIONS  ON  TAXATION. 

deceased,  and  provides  for  a  rate  progressing  by  the  amount  of 
the  legacy  or  share,  therefore  the  tax  is  repugnant  to  that  por- 
tion of  the  first  clause  of  section  8  of  article  1  of  the  Constitution, 
which  provides  that  "duties,  imposts  and  excises  shall  be  unifornx 
throughout  the  United  States." 

The  argument  to  the  contrary,  whilst  conceding  that  the  tax 
devised  by  the  statute  does  not  fulfill  the  requirement  of  equality 
and  uniformity,  as  those  words  are  construed  when  found  in  State 
constitutions,  asserts  that  it  does  not  thereby  follow  that  the 
taxes  in  question  are  repugnant  to  the  Constitution  of  the  United 
States,  since  the  provision  in  the  Constitution,  that  "duties,  im- 
posts, and  excises  shall  l)e  uniform  throughout  the  United  States," 
it  is  insisted  has  a  different  meaning  from  the  expression  equal 
and  uniform,  found  in  State  constitutions.  .  .  . 

Considering  the  text,  it  is  apparent  that  if  the  word  "uniform" 
means  "equal  and  uniform"  in  the  sense  now  asserted  by  the  op- 
ponents of  the  tax,  the  words  "throughout  the  United  States" 
are  deprived  of  all  real  significance,  and  sustaining  the  conten- 
tion must  hence  lead  to  a  disregard  of  the  elementar>'  canon  of 
construction  which  requires  that  effect  be  given  to  each  word  of 
the  Constitution. 

Taking  a  wider  view,  it  is  to  be  remembered  that  the  power  to 
tax  contained  in  section  8  of  article  1  is  to  lay  and  collect  "taxes, 
duties,  imposts  and  excises.  .  .  .  But  all  duties,  imposts  and  ex- 
cises shall  be  uniform  throughout  the  United  States."  .  .  . 

But  the  classes  of  taxes  termed  duties,  imposts,  and  excises,  to 
which  the  rule  of  uniformity  applies,  are  those  to  which  the 
principle  of  equality  and  uniformity  in  the  sense  claimed,  is  in 
the  nature  of  things  the  least  appUcable  and  least  susceptible  of 
being  enforced.  Excises  usually  look  to  a  particular  subject,  and 
levy  burdens  with  reference  to  the  act  of  manufacturing  them, 
selling  them,  etc.  They  are  or  may  be  as  varied  in  form  as  are  the 
acts  or  dealings  with  which  the  taxes  are  concerned.  Impost 
duties  take  every  conceivable  form,  as  may  by  the  legislative 
authority  be  deemed  best  for  the  general  welfare.  They  have 
been  at  all  times  often  specific.  They  have  sometimes  been 
discriminatory,  particularly  when  deemed  necessary  by  reason 
of  the  tariff  legislation  of  other  countries.  The  claim  of  intrin- 
sic uniformity,  therefore,  imputes  to  the  framers  a  restriction  as 
to  certain  forms  of  taxes,  where  the  restraint  was  least  appropri- 
ate and  the  omission  where  it  was  most  needed.  This  discord 
which  the  construction,  if  well  founded,  would  create,  suggests 


KNOWLTON   V.    MOORE.  833 

at  once  the  unsoundness  of  the  proposition,  and  gives  rise  to  the 
inference  that  the  contrary  view  by  which  the  unity  of  the  pro- 
visions of  the  Constitution  is  maintained,  must  be  the  correct 
one.  In  fact,  it  is  apparent  that  if  imposts,  duties,  and  excises  are 
controlled  by  the  rule  of  intrinsic  uniformity,  the  methods  usually 
employed  at  the  time  of  the  adoption  of  the  Constitution  in  all 
countries  in  the  levy  of  such  taxes  would  have  to  be  abandoned 
m  this  country,  and,  therefore,  whilst  nominally  having  the  au- 
thority to  impose  taxes  of  this  character,  the  power  to  do  so  would 
be  virtually  denied  to  Congress. 

Now,  that  the  requirement  that  direct  taxes  should  be  appor- 
tioned among  the  several  States  contemplated  the  protection  of 
the  States,  to  prevent  their  being  called  upon  to  contribute  more 
than  was  deemed  their  due  share  of  the  burden,  is  clear.  Giving 
to  the  term  uniformity  as  applied  to  duties,  imposts,  and  excises  a 
geographical  significance,  likewise  causes  that  provision  to  look 
to  the  forbidding  of  discrimination  as  between  the  States,  by  the 
levying  of  duties,  imposts,  or  excises  upon  a  particular  subject  in 
one  State  and  a  different  duty,  impost,  or  excise  on  the  same  sub- 
ject in  another;  and  therefore,  as  far  as  may  be,  is  a  restriction  in 
the  same  direction  and  in  harmony  with  the  requirement  of  ap- 
portionment of  direct  taxes.  And  the  conclusion  that  the  possible 
discrimination  against  one  or  more  States  was  the  only  thing  in- 
tended to  be  provided  for  by  the  rule  which  uniformity  imposed 
upon  the  power  to  levy  duties,  imposts,  and  excises,  is  greatly 
strengthened  by  considering  the  state  of  the  law  in  the  mother 
country  and  in  the  colonies,  and  the  practice  of  taxtaion  which 
obtained  at  or  about  the  time  of  the  adoption  of  the  Constitu- 
tion. .  .  . 

One  of  the  most  satisfactory  answers  to  the  argument  that  the 
uniformity  required  by  the  Constitution  is  the  same  as  the  equal 
and  uniform  clause  which  has  since  been  embodied  in  so  many  of 
the  State  constitutions,  results  from  a  review  of  the  practice  under 
the  Constitution  from  the  beginning.  From  the  very  first  Con- 
gress down  to  the  present  date,  in  laying  duties,  imposts,  and 
excises,  the  rule  of  inherent  uniformity,  or,  in  other  words,  intrin- 
sically equal  and  uniform  taxes,  has  been  disregarded,  and  the 
principle  of  geographical  uniformity  consistently  enforced.  . 

The  necessities  which  gave  birth  to  the  Constitution,  the  con- 
troversies which  preceded  its  formation,  and  the  conflicts  of 
opinion  which  were  settled  by  its  adoption,  may  properly  be 
taken  into  view  for  the  purpose  of  tracing  to  its  source  any  par- 


g34  EXPRESS  PROVISIONS   ON   TAXATION.  _ 

ticular  provision  of  the  Constitution,  in  order  thereby  to  be  en- 
abled to  correctly  interpret  its  meaning.  Pollock  v.  Farmers' 
Loan  &  Trust  Co.,  157  U.  S.  429,  558. 

The  paralysis  which  the  Articles  of  Confederation  produced 
upon  the  Continental  Congress  because  of  the  want  of  power 
in  that  body  to  enforce  necessary  taxation  to  sustain  the  gov- 
ernment needs  no  more  than  statement.  And  the  proceedings 
of  the  Congress  during  the  Confederation  afford  abundant  evi- 
dence of  the  constant  effort  which  was  made  to  overcome  this 
situation  by  attempts  to  obtain  authority  from  the  States  for 
Congress  to  levy  the  taxes  deemed  by  it  essential,  and  thus  re- 
lieve it  from  the  embarrassment  occasioned  by  the  fact  that  all 
demands  for  revenue  depended  for  fulfillment  wholly  upon  the 
action  of  the  respective  States.  .  .  .  The  sole  and  the  only  ques- 
tion which  was  ever  present  and  in  every  form  was  discussed,  was 
the  operation  of  any  taxing  power  which  might  be  granted  to 
Congress  upon  the  respective  States;  in  other  words,  the  dis- 
crimination as  regards  States  which  might  arise  from  a  greater 
or  lesser  proportion  of  any  tax  being  paid  within  the  geographical 
limits  of  a  particular  State. 

The  proceedings  of  the  Continental  Congress  also  make  it 
clear  that  the  words  "uniform  throughout  the  United  States," 
which  were  afterwards  inserted  in  the  Constitution  of  the  United 
States,  had,  prior  to  its  adoption,  been  frequently  used,  and 
always  with  reference  purely  to  a  geographical  uniformity  and  as 
synonymous  with  the  expression  "to  operate  generally  through- 
out the  United  States."  .  .  . 

Considering  the  proceedings  of  the  convention,  the  same  obser- 
vation is  pertinent  which  we  have  previously  made  as  to  the 
Continental  Congress,  viz.,  that,  despite  the  struggles  and  con- 
troversies which  environed  the  final  adoption  of  the  Constitution, 
not  a  single  word  is  found  in  any  of  the  debates,  or  in  any  of  the 
proceedings  or  historical  documents  contemporaneous  and  con- 
current with  the  adoption  of  the  Constitution,  which  give  the 
slightest  intimation  that  any  suggestion  was  ever  made  that  the 
grant  of  power  to  tax  was  considered  from  the  point  of  view  of  its 
operation  upon  the  individual.  .  .  . 

On  September  14,  1787,  the  words  "But  all  such  duties,  im- 
posts and  excises  shall  be  uniform  throughout  the  United  States," 
which,  in  their  adoption  had  been  associated  with  and  formed  but 
a  part  of  the  clause  forbidding  a  preference  in  favor  of  the  port 
of  one  State  over  the  port  of  another  State  —  in  other  words,  had 


KNOWLTON    V.    MOORE.  835 

been  a  part  of  another  clause  —  were  shifted,  by  a  unanimous 
vote,  from  that  paragraph,  and  were  annexed  to  the  provisions 
granting  the  power  to  tax. 

Thus,  it  came  to  pass  that  although  the  provisions  as  to  pref- 
erence between  ports  and  that  regarding  uniformity  of  duties, 
imposts,  and  excises  were  one  in  purpose,  one  in  their  adoption,  they 
became  separated  only  in  arranging  the  Constitution  for  the 
purpose  of  style.  The  first  now  stands  in  the  Constitution  as  a 
part  of  the  sixth  clause  of  section  7  of  article  1,  and  the  other  is  a 
part  of  the  first  clause  of  section  8  of  article  1.  By  the  result  then 
of  an  analysis  of  the  history  of  the  adoption  of  the  Constitution 
it  becomes  plain  that  the  words  "uniform  throughout  the  United 
States"  do  not  signify  an  intrinsic  but  simpl}^  a  geographical 
uniformity.  .  .  . 

We  add  that  those  who  opposed  the  ratification  of  the  Consti- 
tution clearly  understood  that  the  uniformity  clause  as  to  taxation 
imported  but  a  geographical  uniformity,  and  made  that  fact  a 
distinct  ground  of  complaint.  .  .  . 

It  is  .  .  .  asserted  that  the  tax  does  not  fulfill  the  require- 
ments of  geographical  uniformity,  for  the  following  reason:  As 
the  primary  rate  of  taxation  depends  upon  the  degree  of  relation- 
ship or  want  of  relationship  to  a  deceased  person,  it  is  argued  that 
it  cannot  operate  with  geographical  uniformity,  inasmuch  as 
testamentary  and  intestacy  laws  may  differ  in  every  State.  It  is 
certain  that  the  same  degree  of  relationship  or  want  of  relation- 
ship to  the  deceased,  wherever  existing,  is  levied  on  at  the  same 
rate  throughout  the  United  States.  The  tax  is  hence  uniform 
throughout  the  United  States,  despite  the  fact  that  different  con- 
ditions among  the  States  may  obtain  as  to  the  objects  upon 
which  the  tax  is  levied.  The  proposition  in  substance  assumes 
that  the  objects  taxed  by  duties,  imposts,  and  excises  must  be 
found  in  uniform  quantities  and  conditions  in  the  respective 
States,  otherwise  the  tax  levied  on  them  will  not  be  uniform 
throughout  the  United  States.  But  what  the  Constitution  com- 
mands is  the  imposition  of  a  tax  by  the  rule  of  geographical  uni- 
formity, not  that  in  order  to  levy  such  a  tax  objects  must  be 
selected  which  exist  uniformly  in  the  several  States.  .  .  .  The 
very  objection  upon  which  the  proposition  now  advanced  must 
rest  was  urged  in  the  Continental  Congress  as  the  reason  why  the 
levy  of  uniform  duties,  imposts,  and  excises  throughout  the  United 
States  should  not  be  authorized.  .  .  .  But  it  was  seen  that  if  it 
were  required,  not  only  that  the  duties,  imposts,  and  excises  should 


336  EXPRESS  PROVISIONS  ON  TAXATION. 

be  uniform  throughout  the  United  States,  but  that  in  imposing 
them  objects  should  be  selected  existing  in  equal  quantity  in  the 
several  States,  the  grant  of  power  to  levy  duties,  imposts,  and  ex- 
cises would  be  a  failure.  In  the  convention  which  framed  the 
Constitution  the  same  argument  was  used  without  success.  .  .  . 
To  now  adopt  the  proposition  relied  on  would  be  virtually,  then, 
to  nullify  the  action  of  the  convention,  and  would  relegate  the 
taxing  power  of  Congress  to  the  impotent  condition  in  which  it 
was  during  the  Confederation. 

Lastly,  it  is  urged  that  the  progressive  rate  feature  of  the  statute 
is  so  repugnant  to  fundamental  principles  of  equality  and  justice 
that  the  law  should  be  held  to  be  void,  even  although  it  trans- 
gresses no  express  limitation  in  the  Constitution.  Without  inti- 
mating any  opinion  as  to  the  existence  of  a  right  in  the  courts  to 
exercise  the  power  which  is  thus  invoked,  it  is  apparent  that 
the  argument  as  to  the  enormity  of  the  tax  is  without  merit.  It 
was  disposed  of  in  Magoun  v.  Illinois  Trust  &  Savings  Bank,  170 
U.  S.  283,  293. 

The  review  which  we  have  made  exhibits  the  fact  that  taxes 
imposed  with  reference  to  the  ability  of  the  person  upon  whom 
the  burden  is  placed  to  bear  the  same  have  been  levied  from  the 
foundation  of  the  government.  So,  also,  some  authoritative 
thinkers,  and  a  number  of  economic  writers,  contend  that  a  pro- 
gressive tax  is  more  just  and  equal  than  a  proportional  one.  In 
the  absence  of  constitutional  limitation,  the  question  whether  it 
is  or  is  not  is  legislative  and  not  judicial.  The  grave  consequences 
which  it  is  asserted  must  arise  in  the  future  if  the  right  to  levy  a 
progressive  tax  be  recognized  involves  in  its  ultimate  aspect  the 
mere  assertion  that  free  and  representative  government  is  a 
failure,  and  that  the  grossest  abuses  of  power  are  foreshadowed 
unless  the  courts  usurp  a  purely  legislative  function.  If  a  case 
should  ever  arise,  where  an  arbitrary  and  confiscatory  exaction 
is  imposed  bearing  the  guise  of  a  progressive  or  any  other  form  of 
tax,  it  will  be  time  enough  to  consider  whether  the  judicial  power 
can  afford  a  remedy  by  applying  inherent  and  fundamental 
principles  for  the  protection  of  the  individual,  even  though  there 
be  no  express  authority  in  the  Constitution  to  do  so.  That  the 
law  which  we  have  construed  affords  no  ground  for  the  conten- 
tion that  the  tax  imposed  is  arbitrary  and  confiscatory,  is  obvious. 

It  follows  from  the  foregoing  opinion  that  the  court  below^  erred 
in  denying  all  relief,  and  that  it  should  have  held  the  plaintiff  enti- 
tled to  recover  so  much  of  the  tax  as  resulted  from  taxing  lega- 


PATTON   V.   BRADY.  837 

cies  not  exceeding  ten  thousand  dollars,  and  from  increasing  the 
tax  rate  with  reference  to  the  whole  amount  of  the  personal  estate 
of  the  deceased  from  which  the  legacies  or  distributive  shares 
were  derived.     For  these  reasons 

The  judgment  helow  must  he  reversed  and  the  case  he  remandedf 
with  instructions  that  further  proceedings  he  had  according  to 
law  and  in  conformity  with  this  opinion,  and  it  is  so  ordered.^ 

Brewer,  J.,  dissented  from  so  much  of  the  opinion  as  holds 
that  a  progressive  rate  of  tax  can  be  validly  imposed.  .  .  . 

Peckham.  J.,  took  no  part  in  the  decision. 

Harlan,  J.,  with  whom  concurred  McKenna,  J.,  dissenting.  .. . . 


PATTON  V.   BRADY. 
Supreme  Court  of  the  United  States.     1902. 

[184  United  States,  608.]  * 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Virginia. 

Patton  brought  action  against  Brady,  collector  of  internal 
revenue,  for  the  return  of  a  tobacco  tax  paid  under  protest.  The 
declaration  averred  that  in  May,  1898,  Patton  purchased  tobacco 
on  which  the  internal  revenue  tax  had  been  paid,  and  that  after 
the  act  of  Congress  of  June  13,  1898  (30  Stat.  448),  Brady  exacted 
an  additional  tax  under  this  statute.  The  declaration  averred 
that  the  statute  was  unconstitutional.  On  motion  of  the  United 
States  District  Attorney  the  Circuit  Court  dismissed  the  action. 

W.  L.  Roy  all,  and  others,  for  plaintiff  in  error;  and  Beck, 
Assistant  Attorney  General,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Ever  since  the  early  part  of  the  civil  war  there  has  been  a  body 
of  legislation,  gathered  in  the  statutes  under  the  title  Internal 
Revenue,  by  which,  upon  goods  intended  for  consumption,  ex- 
cises have  been  imposed  in  different  forms  at  some  time  inter- 

»  See  Plummer  t;.  Coler,  178  U.  S.  115  (1900);  Spreckels  Sugar  Refining 
Co.  V.  McClain,  192  U.  S.  397  (1904);  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107 
(1911).  — Ed. 

2  The  statement  has  not  been  reprinted.  —  Ed. 


838  EXPRESS  PROVISIONS  ON  TAXATION. 

mediate  the  beginning  of  manufacture  or  production  and  the  act 
of  consumption.  Among  the  articles  thus  .subjected  to  those 
excises  have  been  liquors  and  tobacco,  appropriately  selected 
therefor  on  the  ground  that  they  are  not  a  part  of  the  essential 
food  supply  of  the  nation,  but  are  among  its  comforts  and  luxu- 
ries. The  first  of  these  acts,  passed  on  July  1,  1862,  12  Stat.  432, 
in  terms  provided  for  "the  collection  of  internal  duties,  stamp 
duties,  licenses  or  taxes  imposed  by  this  act,"  and  included 
manufactured  tobacco  of  all  descriptions.  Subsequent  statutes 
changed  the  amount  of  the  charge,  the  act  of  1890  reducing  it  to 
six  cents  a  pound.  Then  came  the  act  in  question,  which,  for  the 
purpose  of  providing  means  for  the  expenditures  of  the  Spanish 
war,  increased  the  charge  to  12  cents  a  pound,  specifying  dis- 
tinctly that  it  was  to  be  "in  lieu  of  the  tax  now  imposed  by  law." 
Nothing  can  be  clearer  than  that  in  these  various  statutes,  the 
last  included  among  the  number,  Congress  was  intending  to  keep 
alive  a  body  of  excise  charges  on  tobacco,  spirits,  etc.  It  may  be 
that  all  the  taxes  enumerated  in  these  various  statutes  were  not 
excises,  but  the  great  body  of  them,  including  the  tax  on  tobacco, 
were  plainly  excises  within  any  accepted  definition  of  the  term. 

Turning  to  Blackstone,  Vol.  1,  p.  318,  we  find  an  excise  defined: 
"An  inland  imposition,  paid  sometimes  upon  the  consumption  of 
the  commodity,  or  frequently  upon  the  retail  sale,  which  is  the 
last  stage  before  the  consumption."  This  definition  is  accepted 
by  Story  in  his  Constitution  of  the  United  States,  §  953. 
Cooley  in  his  work  on  Taxation,  page  3,  defines  it  as  "an  inland 
impost  levied  upon  articles  of  manufacture  or  sale,  and  also  upon 
licenses  to  pursue  certain  trades,  or  to  deal  in  certain  commodi- 
ties." Bouvier  and  Black,  respectively,  in  their  dictionaries  give 
the  same  definition.  If  we  turn  to  the  general  dictionaries,  Web- 
ster's International  calls  it  "an  inland  duty  or  impost  operating 
as  an  indirect  tax  on  the  consumer,  levied  upon  certain  specified 
articles,  as  tobacco,  ale,  spirits,  etc.,  growTi  or  manufactured  in 
the  country.  It  is  also  levied  on  licenses  to  pursue  certain  trades 
and  deal  in  certain  commodities."  The  definition  in  the  Century 
Dictionary  is  substantially  the  same,  though  in  addition  this  is 
quoted  from  Andrews  on  Rev.  Law,  §  133:  "Excises  is  a  word 
generally  used  in  contradistinction  to  imposts  in  its  restricted 
sense,  and  is  applied  to  internal  or  inland  impositions,  levied 
sometimes  upon  the  consumption  of  a  commodity,  sometimes 
upon  the  retail  sale  of  it,  and  sometimes  upon  the  manufacture 
of  it." 


PATTON   V.   BRADY.  839 

Some  of  these  definitions  were  quoted  with  approval  by  this 
court  in  the  Income  Tax  cases,  and  while  the  phraseology'  is  not 
the  same  in  all,  yet  so  far  as  the  particular  tax  before  us  is  con- 
cerned, each  of  them  would  include  it.  The  tax  on  manufactured 
tobacco  is  a  tax  on  an  article  manufactured  for  consumption,  and 
imposed  at  a  period  intermediate  the  commencement  of  manu- 
facture and  the  final  consumption  of  the  article. 

It  is  practically  conceded  by  one  counsel  for  plaintiff  in  error 
that  this  is  an  excise  tax.  After  discussing  the  question  at  some 
length  he  says: 

"To  determine  then  what  excise  means  we  have  for  our  guid- 
ance, first,  an  enumeration  of  the  articles  that  it  fell  on  in  Great 
Britain  in  1787,  We  have,  second,  the  nature  of  the  tax  as  judi- 
cially determined;  and  we  have,  third,  the  definition  of  it,  or  the 
common  understanding  of  men  about  it,  as  given  by  the  Ency- 
clopedia Britannica  and  the  Century  Dictionary.  Taking  these 
three  sources  of  information  and  combining  them,  it  would  seem 
that  the  leading  idea  of  excise  is  that  it  is  a  tax,  laid  without  rule 
or  principle,  upon  consumable  articles,  upon  the  process  of  their 
manufacture  and  upon  licenses  to  sell  them.  .  .  .  Since  tobacco 
was  supposed  to  be  one  of  the  subjects  to  which  excise  was  applied 
in  England  when  the  Constitution  was  framed,  I  shall  assume 
that  the  court  will  hold  that  the  tax  in  this  case  is  an  excise." 

It  is  true  other  counsel  in  their  ])rief  have  advanced  a  very 
elaborate  and  ingenious  argument  to  show  that  this  is  a  direct  tax 
upon  property  which  must  be  apportioned  according  to  popula- 
tion within  the  rule  laid  down  in  the  Income  Tax  cases,  but,  as 
we  have  seen,  it  is  not  a  tax  upon  property  as  such  but  upon  cer- 
tain kinds  of  property,  having  reference  to  their  origin  and  their 
intended  use.  It  may  be,  as  Dr.  Johnson  said,  "a  hateful  tax 
levied  upon  commodities;"  an  opinion  evidently  shared  by 
Blackstone,  who  says,  after  mentioning  a  number  of  articles  that 
had  been  added  to  the  list  of  those  excised,  "a  list  which  no  friend^ 
to  his  country  would  wish  to  see  further  increased."  But  these 
are  simply  considerations  of  policy  and  to  be  determined  by  the 
legislative  branch,  and  not  of  power,  to  be  determined  by  the 
judiciary.  We  conclude,  therefore,  that  the  tax  which  is  levied 
by  this  act  is  an  excise,  properly  so  called,  and  we  proceed  to  con- 
sider the  further  propositions  presented  by  counsel. 

It  is  insisted:  "That  Congress  may  excise  an  article  as  it  pleases 
so  that  the  excise  does  not  amount  to  spoliation  or  confiscation. 
But  that  having  excised  it,  it  has  excised  it,  and  the  power  is 


840  EXPRESS  PROVISIONS  ON  TAXATION. 

exhausted.     It  cannot  excise  a  second  time."     But  why  should 
the  power  of  imposing  an  excise  tax  be  exhausted  wlien  once  exer- 
cised?    It  must  be  remembered  that  taxes  are  not  del)ts  in  the 
sense  that  having  once  been  established  and  paid  all  further  liabil- 
ity of  the  individual  to  the  government  has  ceased.    They  are,  as 
said  in  Cooley  on  Taxation,  p.   1:  "The  enforced  proportional 
contribution  of  persons  and  property,  levied  by  the  authority  of 
the  State  for  the  support  of  the  government  and  for  all  ]m\)\H' 
needs,"  and  so  long  as  there  exist  pul)lic  needs  just  so  long  exists 
the  liability  of  the  individual  to  contribute  thereto.    The  obliga- 
tion of  the  individual  to  the  State  is  continuous  and  proportioned 
to  the  extent  of  the  public  wants.    No  human  wisdom  can  always 
foresee  what  may  be  the  exigencies  of  the  future,  or  determine  in 
advance  exactly  what  the  government  must  have  in  order  "to 
provide  for  the  common  defence"   and   "promote  the  general 
welfare."    Emergencies  may  ari.se;  wars  may  come  unexpectedly; 
large  demands  upon  the  public  may  spring  into  being  with  httle 
forewarning;  and  can  it  be,  that  having  made  provision  for  times 
of  peace  and  quiet,  the  government  is  powerless  to  make  a  further 
call  upon  its  citizens  for  the  contributions  necessary  for  unex- 
pected exigencies? 

That  which  was  possible  in  fact  existed.  A  war  had  been  de- 
clared. National  expenditures  would  naturally  increase  and  did 
increase  by  reason  thereof.  Provision  by  way  of  loan  or  taxation 
for  such  increased  expenditures  was  necessary.  There  is  in  this 
legislation,  if  ever  such  a  question  could  arise,  no  matter  of  color 
or  pretence.  There  was  an  existing  demand,  and  to  meet  that 
demand  this  statute  was  enacted.  The  question,  therefore,  is 
whether  Congressional  provision  must  reach  through  an  entire 
year  and  at  the  beginning  finally  determine  the  extent  of  the 
burden  of  taxes  which  can  be  cast  upon  the  citizen  during  that 
year,  with  the  result  that  if  exigencies  arise  during  the  year  call- 
ing for  extraordinary  and  unexpected  expenses  the  burden  thereof 
'must  be  provided  for  by  way  of  loan,  temporary  or  permanent; 
or  whether  there  inheres  in  Congress  the  power  to  increase  taxa- 
tion during  the  year  if  exigencies  demand  increased  expenditures. 
On  this  question  we  can  have  no  doubt.  Taxation  may  run  pari 
passu  with  expenditure.  The  constituted  authorities  may  right- 
fully make  one  equal  the  other.  The  fact  that  action  has  been 
taken  with  regard  to  conditions  of  peace  does  not  prevent  subse- 
quent action  with  reference  to  unexpected  demands  of  war. 
Courts  may  not  in  this  respect  revise  the  action  of  Congress. 


PATTON    v.   BRADY.  841 

That  body  determines  the  question  of  war,  and  it  maj^  therefore 
rightfully  prescribe  the  means  necessary  for  carrying  on  that 
war.  Loan  or  tax  is  possible.  It  may  adopt  either,  or  divide 
between  the  two.  If  it  determines  in  whole  or  in  part  on  tax, 
that  means  an  increase  in  the  existing  rate  or  perhaps  in  the 
subjects  of  taxation,  and  the  judgment  of  Congress  in  respect 
thereto  is  not  subject  to  judicial  challenge.  .  .  . 

In  a  general  way  these  observations  on  the  power  of  Congress 
to  meet  exigencies  by  increased  taxation  are  not  questioned  by 
counsel,  but  it  is  specifically  insisted  that  the  power  of  imposing 
an  excise  once  exercised  is  gone,  even  though  the  property  may 
thereafter  remain  subject  to  ordinary  taxation  upon  property  as 
such.  .  .  . 

But  what  is  the  difference  in  the  nature  of  an  excise  and  an 
ordinary  property  tax  which  forbids  a  repetition  or  increase  in 
the  one  case  and  permits  it  in  the  other?  They  are  each  methods 
by  which  the  individual  is  made  to  contribute  out  of  his  property 
to  the  support  of  the  government,  and  if  an  ordinary  property 
tax  may  be  repeated  or  increased  when  the  exigencies  of  the 
government  may  demand,  no  reason  is  perceived  why  an 
excise  should  not  also  be  repeated  or  increased  under  like 
exigencies.  .  .  .  Affirmed.^ 

1  See  McCray  v.  United  States,  195  U.  S.  27  (1904).  —  Ed. 


CHAPTER  II. 

MONEY. 

CRAIG   V.   MISSOURI. 
Supreme  Court  of  the  United  States.     1830. 

[4  Peters,  410.] ' 

Error  to  the  Supreme  Court  of  Missouri. 

In  the  Circuit  Court  of  Chariton  County  the  State  of  Missouri 
brought  action  against  Craig  and  others  on  a  promissory  note. 
The  general  issue  was  pleaded;  and  the  case  was  submitted  to 
the  court  without  the  intervention  of  a  jury.  The  court  found 
that  the  consideration  for  the  note  was  the  loan  by  the  State  of 
the  State's  loan  office  certificates  issued  under  the  act  of  June  27, 
1821.  The  court  gave  judgment  for  the  State;  and  this  judgment 
was  affirmed  by  the  Missouri  Supreme  Court. 

Sheffey,  for  plaintiffs  in  error;  and  Benton,  contra. 

Marshall,  C.  J.,  dehvered  the  opinion  of  the  court.  ,  .  . 

The  clause  in  the  Constitution  which  this  act  is  supposed 
to  violate  is  in  these  words:  "No  state  shall"  "emit  bills  of 
credit." 

What  is  a  bill  of  credit?  What  did  the  Constitution  mean  to 
forbid? 

In  its  enlarged,  and  perhaps  its  literal  sense,  the  term  "bill  of 
credit"  may  comprehend  any  instrument  by  which  a  State  en- 
gages to  pay  money  at  a  future  day;  thus  including  a  certificate 
given  for  money  borrowed.  But  the  language  of  the  Constitution 
itself,  and  the  mischief  to  be  prevented,  which  we  know  from 
the  history  of  our  country,  equally  lunit  the  interpretation  of  the 
terms.  The  word  "emit,"  is  never  employed  in  describing  those 
contracts  by  which  a  State  binds  itself  to  pay  money  at  a  future 
day  for  services  actually  received,  or  for  money  borrowed  for  pres- 
ent use;  nor  are  instruments  executed  for  such  purposes,  in  com- 
mon language,  denominated  "bills  of  credit."  To  "emit  bills 
of  credit,"  conveys  to  the  mind  the  idea  of  issuing  paper  intended 
to  circulate  through  the  community  for  its  ordinary  purposes, 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 

842 


CRAIG  V.   MISSOURI.  843 

as  money,  which  paper  is  redeemable  at  a  future  day.     This  is 
the  sense  in  which  the  terms  have  been  always  understood. 

At  a  very  early  period  of  our  colonial  history,  the  attempt 
to  supply  the  want  of  the  precious  metals  by  a  paper  medium  was 
made  to  a  considerable  extent;  and  the  bills  emitted  for  this 
purpose  have  been  frequently  denominated  bills  of  credit.  During 
the  war  of  our  revolution,  we  were  driven  to  this  expedient; 
and  necessity  compelled  us  to  use  it  to  a  most  fearful  extent. 
The  term  has  acquired  an  appropriate  meaning;  and  "bills  of 
credit"  signify  a  paper  medium,  intended  to  circulate  between 
individuals,  and  between  government  and  individuals,  for  the 
ordinary  purposes  of  society.  Such  a  medium  has  been  always 
liable  to  considerable  fluctuation.  Its  value  is  continually  chang- 
ing; and  these  changes,  often  great  and  sudden,  expose  individ- 
uals to  immense  loss,  are  the  sources  of  ruinous  speculations, 
and  destroy  all  confidence  between  man  and  man.  To  cut  up 
this  mischief  by  the  roots,  a  mischief  which  was  felt  through  the 
United  States,  and  which  deeply  affected  the  interest  and  pros- 
perity of  all,  the  people  declared  in  their  Constitution,  that  no 
State  should  emit  bills  of  credit.  If  the  prohibition  means  any 
thing,  if  the  words  are  not  empty  sounds,  it  must  comprehend 
the  emission  of  any  paper  medium,  by  a  State  government,  for 
the  purpose  of  common  circulation. 

What  is  the  character  of  the  certificates  issued  by  authority 
of  the  act  under  consideration?  What  office  are  they  to  perform? 
Certificates  signed  by  the  auditor  and  treasurer  of  the  State, 
are  to  be  issued  by  those  officers  to  the  amount  of  two  hundred 
thousand  dollars,  of  denominations  not  exceeding  ten  dollars,  nor 
less  than  fifty  cents.  The  paper  purports  on  its  face  to  be  re- 
ceivable at  the  treasury,  or  at  any  loan  office  of  the  State  of  Mis- 
souri, in  discharge  of  taxes  or  debts  due  to  the  State. 

The  law  makes  them  receivable  in  discharge  of  all  taxes,  or 
debts  due  to  the  State,  or  any  county  or  town  therein;  and  of 
all  salaries  and  fees  of  office,  to  all  officers  civil  and  military  within 
the  State;  and  for  salt  sold  by  the  lessees  of  the  public  salt 
works.  It  also  pledges  the  faith  and  funds  of  the  State  for  their 
redemption. 

It  seems  impossible  to  doubt  the  intention  of  the  legislature 
in  passing  this  act,  or  to  mistake  the  character  of  these  certificates, 
or  the  office  they  were  to  perform.  The  denominations  of  the 
bills,  from  ten  dollars  to  fifty  cents,  fitted  them  for  the  purpose 
of  ordinary  circulation;   and  their  reception  in  payment  of  taxes, 


844  MONEY. 

and  debts  to  the  government  and  to  corporations,  and  of  salaries 
and  fees,  would  give  them  currency.  They  were  to  be  put  into 
circulation;  that  is,  emitted,  by  the  government.  In  addition 
to  all  these  evidences  of  an  intention  to  make  these  certificates 
the  ordinary  circulating  medium  of  the  country,  the  law  speaks 
of  them  in  this  character;  and  directs  the  auditor  and  treasurer 
to  withdraw  annually  one-tenth  of  them  from  circulation.  Had 
they  been  termed  "bills  of  credit,"  instead  of  "certificates," 
nothing  would  have  been  wanting  to  bring  them  within  the  pro- 
hibitory words  of  the  Constitution. 

And  can  this  make  any  real  difference?  Is  the  proposition  to 
be  maintained  that  the  Constitution  meant  to  prohibit  names 
and  not  things?  That  a  very  important  act,  big  with  great  and 
ruinous  mischief,  which  is  expressly  forbidden  by  words  most 
appropriate  for  its  description,  may  be  performed  by  the  sub- 
stitution of  a  name?  That  the  Constitution,  in  one  of  its  most 
important  provisions,  may  be  openly  evaded  by  giving  a  new 
name  to  an  old  thing?  We  cannot  think  so.  We  think  the  cer- 
tificates emitted  untler  the  authority  of  this  act  are  as  entirely 
bills  of  credit,  as  if  they  had  been  so  denominated  in  the  act 
itself. 

But  it  is  contended,  that  though  these  certificates  should  be 
deemed  bills  of  credit,  according  to  the  common  acceptation  of 
the  term,  they  are  not  so  in  the  sense  of  the  Constitution;  because 
they  are  not  made  a  legal  tender. 

The  Constitution  itself  furnishes  no  countenance  to  this  dis- 
tinction. The  prohibition  is  general.  It  extends  to  all  bills  of 
credit,  not  to  bills  of  a  particular  description.  That  tribunal 
must  be  bold  indeed,  which,  without  the  aid  of  other  explanatory 
words,  could  venture  on  this  construction.  It  is  the  less  admissi- 
ble in  this  case,  because  the  same  clause  of  the  Constitution  con- 
tains a  substantive  prohibition  to  the  enactment  of  tender  laws, 
the  Constitution,  therefore,  considers  the  emission  of  bills  of 
credit  and  the  enactment  of  tender  laws  as  distinct  operations, 
independent  of  each  other,  which  may  be  separately  performed. 
Both  are  forbidden.  To  sustain  the  one,  because  it  is  not  also 
the  other;  to  say  that  bills  of  credit  may  be  emitted,  if  they  be 
not  made  a  tender  in  payment  of  debts;  is,  in  effect,  to  expunge 
that  distinct  independent  prohibition,  and  to  read  the  clause  as  if 
it  had  been  entirely  omitted.    We  are  not  at  liberty  to  do  this. 

The  history  of  paper  money  has  been  referred  to,  for  the  pur- 
pose of  showing  that  its  great  mischief  consists  in  being  made  a 


CRAIG    V.    MISSOURI.  845 

tender;  and  that  therefore  the  general  words  of  the  Constitution 
may  be  restrained  to  a  particular  intent. 

Was  it  even  true,  that  the  evils  of  paper  money  resulted  solely 
from  the  quality  of  its  being  made  a  tender,  this  court  would 
not  feel  itself  authorized  to  disregard  the  plain  meaning  of  words, 
in  search  of  a  conjectural  intent  to  which  we  are  not  conducted 
b}^  the  language  of  any  part  of  the  instrument.  But  we  do  not 
think  that  the  history  of  our  country  proves,  either  that  being 
made  a  tender  in  payment  of  debts  is  an  essential  quality  of  bills 
of  credit,  or  the  only  mischief  resulting  from  them.  It  may,  in- 
deed, be  the  most  pernicious;  but  that  will  not  authorize  a  court 
to  convert  a  general  into  a  particular  prohibition.  .  .  . 

The  certificates  for  which  this  note  was  given,  being  in  truth 
"bills  of  credit"  in  the  sense  of  the  Constitution,  we  are  brought 
to  the  inquiry: 

Is  the  note  valid  of  which  they  form  the  consideration? 

It  has  been  long  settled,  that  a  promise  made  in  consideration  of 
an  act  which  is  forbidden  by  law  is  void.  It  will  not  be  ques- 
tioned, that  an  act  forbidden  by  the  Constitution  of  the  United 
States,  which  is  the  supreme  law,  is  against  law.  Now  the  Con- 
stitution forbids  a  State  to  "emit  bills  of  Credit."  The  loan  of 
these  certificates  is  the  very  act  which  is  forbidden.  It  is  not  the 
making  of  them  while  they  lie  in  the  loan  offices;  but  the  issuing 
of  them,  the  putting  them  into  circulation,  which  is  the  act  of 
emission;  the  act  that  is  forbidden  by  the  Constitution.  The 
consideration  of  this  note  is  the  emission  of  bills  of  credit  by 
the  State.  The  very  act  which  constitutes  the  consideration,  is  the 
act  of  emitting  bills  of  credit,  in  the  mode  prescribed  by  the  law 
of  Missouri;  which  act  is  prohibited  by  the  Constitution  of  the 
United  States.  .  .  . 

The  judgment  of  the  Supreme  Court  of  .  .  .  Missouri  .  .  .  is  re- 
versed, and  the  cause  remanded,  with  directions  to  enter  judg- 
ment for  the  defendants} 

Johnson,  J.,  dissenting.  .  .  . 

Thompson,  J.,  dissenting.  .  .  . 

McLean,  J.,  dissenting.  .  .  . 

»  Compare  Briscoe  v.  Bank  of  Kentucky,  11  Peters,  257  (1837).  —  Ed. 


g46  MONEY. 

FOX  V.  THE  STATE  OF  OHIO. 
Supreme  Court  of  the  United  States.     1847. 

[b  Howard,  410.) » 

Error  to  the  Supreme  Court  of  Ohio. 

Comers  for  plaintiff  in  error;  and  Stanhery,  Attorney  General 
of  Ohio,  contra. 

Daniel,  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  a  writ  of  error  to  the  Supreme 
Court  of  the  State  of  Ohio,  by  whose  judgment  was  affirmed 
the  judgment  of  the  Court  of  Common  Pleas  for  the  county  of 
Morgan  in  that  State,  convicting  the  plaintiff  of  passing,  with 
fraudulent  intent,  a  base  and  counterfeit  coin  in  the  similitude 
of  a  good  and  legal  silver  dollar,  and  sentencing  her  for  that  of- 
fence to  imprisonment  and  labor  in  the  State  penitentiary  for 
three  years. 

The  prosecution  against  the  plaintiff  occurred  in  virtue  of  a  stat- 
ute of  Ohio  of  March  7th,  1835,  and  the  particular  clause  on 
which  the  indictmen.t  was  founded  is  in  the  following  language, 
yi2.: — "That  if  any  person  shall  counterfeit  any  of  the  coins 
of  gold,  silver,  or  copper  currently  passing  in  this  State,  or  shall 
alter  or  put  off  counterfeit  coin  or  coins,  knowing  them  to  be 
such,"  &c.,  "every  person  so  offending  shall  be  deemed  guilty 
of  a  misdemeanor."  .  .  . 

For  the  plaintiff  it  is  insisted  that  the  statute  of  Ohio  is 
repugnant  to  the  fifth  and  sixth  clauses  of  the  eighth  section  of 
the  first  article  of  the  Constitution,  which  invest  Congress  with 
the  power  to  coin  money,  regulate  the  value  thereof  and  of 
foreign  coin,  and  to  provide  for  the  punishment  of  counterfeit- 
ing the  current  coin  of  the  United  States;  contending  that  these 
clauses  embrace  not  only  what  their  language  directly  imports, 
and  all  other  offences  which  may  be  denominated  offences  against 
the  coin  itself,  such  as  counterfeiting,  scahng,  or  clipping  it,  or 
debasing  it  in  any  mode,  but  that  they  embrace  other  offences, 
such  as  frauds,  cheats,  or  impositions  between  man  and  man  by 
intentionally  circulating  or  putting  upon  any  person  a  base  or 
simulated  coin.  On  behalf  of  the  State  of  Ohio,  it  is  insisted  that 
this  is  not  the  correct  construction  to  be  placed  upon  the  clauses 
of  the  Constitution  in  question,  either  by  a  natural  and  philologi- 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


FOX  V.    THE  STATE  OF  OHIO.  847 

cal  interpretation  of  their  language,  or  bj^  any  real  necessity  for 
the  attainment  of  their  objects;  and  that  if  any  act  of  Congress 
should  be  construed  as  asserting  this  meaning  in  the  Constitu- 
tion, and  as  claiming  from  it  the  power  contended  for,  it  would 
not  be  a  law  passed  in  pursuance  of  the  Constitution,  nor  one 
deriving  its  authority  regularly  from  that  instrument. 

We  think  it  manifest  that  the  language  of  the  Constitution,  by 
its  proper  signification,  is  limited  to  the  facts,  or  to  the  faculty  in 
Congress  of  coining  and  of  stamping  the  standard  of  value  upon 
what  the  government  creates  or  shall  adopt,  and  of  punishing  the 
offence  of  producing  a  false  representation  of  what  may  have 
been  so  created  or  adopted.  The  imposture  of  passing  a  false 
coin  creates,  produces,  or  alters  nothing;  it  leaves  the  legal  coin 
as  it  was,  —  affects  its  intrinsic  value  in  no  wise  whatsoever. 
The  criminality  of  this  act  consists  in  the  obtaining  for  a  false 
representative  of  the  true  coin  that  for  which  the  true  coin  alone 
is  the  equivalent.  There  exists  an  ob\4ous  difference,  not  only 
in  the  description  of  these  offences,  but  essentially  also  in  their 
characters.  The  former  is  an  offence  directly  against  the  govern- 
ment, by  which  individuals  may  be  affected;  the  other  is  a  private 
wrong,  by  which  the  government  may  be  remotely,  if  it  will  in 
in  any  degree  be,  reached.  A  material  distinction  has  been  recog- 
nized between  the  offences  of  counterfeiting  the  coin  and  of  pass- 
ing base  coin  by  a  government  which  may  be  deemed  sufficiently 
jealous  of  its  authority;  sufficiently  rigorous,  too,  in  its  penal 
code.  Thus,  in  England,  the  counterfeiting  of  the  coin  is  made 
high  treason,  whether  it  be  uttered  or  not;  but  those  who  barely 
utter  false  money  are  neither  guilty  of  treason  nor  of  misprision 
of  treason.  1  Hawkins's  Pleas  of  the  Crown,  20.  Again  (1  East's 
Crown  Law,  178),  if  A.  counterfeit  the  gold  or  silver  coin,  and  by 
agreement  before  such  counterfeiting  B.  is  to  receive  and  vent 
the  money,  he  is  an  aider  and  abettor  to  the  act  itself  of  counter- 
feiting, and  consequently  a  principal  traitor  within  the  law.  But 
if  he  had  merely  vented  the  money  for  his  own  private  benefit, 
knowing  it  to  be  false,  in  fraud  of  any  person,  he  was  only  liable 
to  be  punished  as  for  a  cheat  and  misdemeanor,  &c.  These 
citations  from  approved  English  treatises  on  criminal  law  are 
adduced  to  show,  in  addition  to  the  obvious  meaning  of  the  words 
of  the  Constitution,  what  has  been  the  adjudged  and  estabUshed 
import  of  the  phrase  counterfeiting  the  coin,  and  to  what  descrip- 
tion of  acts  that  phrase  is  restricted. 

It  would  follow  from  these  views,  that  if  within  the  power 


848  MONEY. 

conferred  by  the  clauses  of  the  Constitution  above  quoted  can 
be  drawn  the  power  to  punish  a  private  cheat  effected  by  means 
of  a  base  dollar,  that  power  certainly  cannot  be  deduced  from 
either  the  common  sense  or  the  adjudicated  meaning  of  the 
language  used  in  the  Constitution,  or  from  any  apparent  or  prob- 
able conflict  which  might  arise  l)etween  the  Federal  and  State 
authorities,  operating  each  upon  these  distinct  characters  of 
offence.  If  any  such  conflict  can  be  apprehended,  it  must  be  from 
some  remote,  and  obscure,  and  scarcely  comprehensible  possi- 
bihty,  which  can  never  constitute  an  objection  to  a  just  and 
necessary  State  power.  The  punishment  of  a  cheat  or  a  mis- 
demeanor practiced  within  the  State,  and  against  those  whom 
she  is  bound  to  protect,  is  pecuharly  and  appropriately  within  her 
functions  and  duties,  and  it  is  difhoult  to  imagine  an  interference 
with  those  duties  and  functions  which  would  be  regular  or  justi- 
fiable. It  has  been  objected  on  behalf  of  the  plaintiff  in  error, 
that  if  the  States  could  inflict  penalties  for  the  offence  of  passing 
base  coin,  and  the  Federal  government  should  denounce  a  penalty 
against  the  same  act,  an  individual  under  these  separate  juris- 
dictions might  be  liable  to  be  twice  punished  for  the  one  and  the 
same  crime,  and  that  this  would  be  in  violation  of  the  fifth  article 
of  the  amendments  to  the  Constitution,  declaring  that  no  person 
shall  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy 
of  life  or  limb.  Conceding  for  the  present  that  Congress  should 
undertake,  and  could  rightfully  undertake,  to  punish  a  cheat 
perpetrated  between  citizens  of  a  State  because  an  instrument 
in  effecting  that  cheat  was  a  counterfeited  coin  of  the  United 
States,  the  force  of  the  objection  sought  to  be  deduced  from  the 
position  assumed  is  not  perceived.  .  .  . 

The  judgment  of  the  Supreme  Court  of  the  State  of  Ohio, 
affirming  that  of  the  Court  of  Common  Pleas,  is  therefore  in  all 
things  Affirmed} 

McLean,  J.     I  dissent  from  the  opinion  of  the  court.  .  .  . 

1  Compare  United  States  v.  Marigold,  9  How.  560  (1850).  —  Ed. 


LEGAL   TENDER   CASES.  849 

LEGAL   TENDER  CASES. 
Supreme  Court  of  the  United  States.     187L 

[12  Wallace,  457.] » 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Texas ;  and  appeal  from  the  Supreme  Judicial  Court  of 
Massachusetts. 

In  the  first  case  Mrs.  Lee,  a  citizen  of  Pennsylvania,  brought  an 
action  of  trespass  against  Knox,  a  citizen  of  Texas,  for  taking 
sheep.  Knox  pleaded  that  in  1863  the  Confederate  authorities 
confiscated  the  sheep  as  property  of  an  alien  enemy  and  sold  them 
to  him.  The  plea  was  overruled.  At  the  trial,  in  1867,  question 
was  made  as  to  the  measure  of  damages,  gold  and  silver  having 
been  replaced  by  legal  tender  notes  authorized  under  acts  of 
Congress  of  Feb.  25,  1862,  July  11,  1862,  and  March  3,  1863  (12 
Stat.  345,  532,  709),  which  made  such  notes  a  legal  tender  for 
''debts;"  and  the  court  charged  that  "in  assessing  damages,  the 
jury  will  recollect  that  whatever  amount  they  may  give  by  their 
verdict  can  be  discharged  by  the  payment  of  such  amount  in  legal 
tender  notes."  The  jury  found  for  the  plaintiff,  $7,368,  and  the 
defendant  took  this  writ  of  error,  complaining  that  his  plea  should 
not  have  been  overruled  and  that  the  charge  led  the  jury  to  in- 
crease the  damages  improperly. 

In  the  second  case  Davis  by  bill  in  equity  sought  specific  per- 
formance of  a  contract  by  Parker  to  convey  land  for  a  certain 
agreed  sum,  and  suit  was  l^rought  before  any  of  the  legal  tender 
statutes.  The  Supreme  Court  of  Massachusetts  in  1867  decreed 
that  Davis  should  pay  a  certain  sum  into  court  and  that  Parker 
should  thereupon  execute  the  deed;  and  later  the  court  modified 
the  decree  by  requiring  Parker  to  execute  the  deed  upon  payment 
into  court  of  a  specific  sum  in  legal  tender  notes.  From  the  decree 
as  thus  modified  Parker  took  an  appeal  under  the  25th  section  of 
the  Judiciary  Act. 

Paschall  and  Paschall,  for  plaintiff  in  error;  Wills,  contra;  B.  F. 
Thomas,  for 'appellant ;  B.  F.  Butler,  contra;  and,  by  permission, 
C.  W.  Potter,  against  the  constitutionality  of  the  statutes,  and 
Ackerman,  Attorney  General,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  court. 

1  The  two  cases  were  entitled  in  this  court  Knox  v.  Lee  and  Parker  v. 
Davis.  The  reporter's  statement  has  not  been  reprinted.  Judgment  was 
rendered  May  1,  1871,  and  the  opinions  were  delivered  Jan.  15,  1872.  —  Ed. 


850  MONEY. 

The  controlling  questions  in  these  cases  are  the  following:  Are 
the  acts  of  Congi'ess,  known  as  the  legal  tender  acts,  constitutional 
when  applied  to  contracts  made  before  their  passage;  and,  sec- 
ondly, are  they  valid  as  applicable  to  debts  contracted  since  their 
enactment?  ...  If  it  be  held  by  this  court  that  Congress  has  no 
constitutional  power,  under  any  circumstances,  or  in  any  emer- 
gency, to  make  treasury  notes  a  legal  tender  for  the  payment  of 
all  debts  (a  power  confessedly  possessed  by  every  independent 
sovereignty  other  than  the  United  States),  the  government  is 
without  those  means  of  self-preservation  which,  all  must  admit, 
may,  in  certain  contingencies,  become  indispensable,  even  if  they 
were  not  when  the  acts  of  Congress  now  called  in  question  were 
enacted.  It  is  also  clear  that  if  we  hold  the  acts  invalid  as  appli- 
cable to  debts  incurred,  or  transactions  which  have  taken  place 
since  their  enactment,  our  decision  must  cause,  throughout  the 
country,  great  business  derangement,  widespread  distress,  and 
the  rankest  injustice.  .  .  .  And  there  is  no  well-founded  distinc- 
tion to  be  made  between  the  constitutional  validity  of  an  act  of 
Congress  declaring  treasury  notes  a  legal  tender  for  the  payment 
of  debts  contracted  after  its  passage  and  that  of  an  act  making 
them  a  legal  tender  for  the  discharge  of  all  debts,  as  well  those 
incurred  before  as  those  made  after  its  enactment.  There  may 
be  a  difference  in  the  effects  produced  by  the  acts,  and  in  the 
hardship  of  their  operation,  but  in  both  cases  the  fundamental 
question,  that  which  tests  the  validity  of  the  legislation,  is,  can 
Congress  constitutionally  give  to  treasury  notes  the  character 
and  qualities  of  money?  Can  such  notes  be  constituted  a  legiti- 
mate circulating  medimn,  having  a  defined  legal  value?  ... 

The  consequences  of  which  we  have  spoken,  serious  as  they  are, 
must  be  accepted,  if  there  is  a  clear  incompatibility  between  the 
Constitution  and  the  legal  tender  acts.  But  we  are  unwilling  to 
precipitate  them  upon  the  country  unless  such  an  incompatibility 
plainly  appears.  A  decent  respect  for  a  co-ordinate  branch  of  the 
government  demands  that  the  judiciary  should  presume,  until  the 
contrary  is  clearly  shown,  that  there  has  been  no  transgression  of 
power  by  Congress  —  all  the  members  of  which  act  under  the 
obligation  of  an  oath  of  j&delity  to  the  Constitution.  .  .  . 

Nor  can  it  be  questioned  that,  when  investigating  the  nature 
and  extent  of  the  powers  conferred  by  the  Constitution  upon 
Congress,  it  is  indispensable  to  keep  in  view  the  objects  for  which 
those  powers  were  granted.  This  is  a  universal  rule  of  construc- 
tion applied  alike  to  statutes,  wills,  contracts,  and  constitutions. 


LEGAL   TENDER   CASES,  851 

If  the  general  purpose  of  the  instrument  is  ascertained,  the  lan- 
guage of  its  provisions  must  be  construed  with  reference  to  that 
purpose  and  so  as  to  subserve  it.  In  no  other  way  can  the  intent 
of  the  framers  of  the  instrument  be  discovered.  And  there  are 
more  urgent  reasons  for  looking  to  the  ultimate  purpose  in  examin- 
mg  the  powers  conferred  by  a  constitution  than  there  are  in  con- 
struing a  statute,  a  uill,  or  a  contract.  We  do  not  expect  to  find 
m  a  constitution  minute  details.  It  is  necessarily  brief  and  com- 
prehensive. It  prescribes  outlines,  leaving  the  filling  up  to  be 
deduced  from  the  outlines.  ...  The  powers  conferred  upon 
Congress  must  be  regarded  as  related  to  each  other,  and  all  means 
for  a  common  end.  Each  is  but  part  of  a  system,  a  constituent 
of  one  whole.  No  single  power  is  the  ultimate  end  for  which  the 
Constitution  was  adopted.  It  may,  in  a  very  proper  sense,  be 
treated  as  a  means  for  the  accomplishment  of  a  subordinate 
object,  but  that  object  is  itself  a  means  designed  for  an  ulterior 
purpose.  Thus  the  power  to  levy  and  collect  taxes,  to  coin  money 
and  regulate  its  value,  to  raise  and  support  armies,  or  to  provide 
for  and  maintain  a  na\y,  are  instruments  for  the  paramount 
object,  which  was  to  establish  a  government,  sovereign  within  its 
sphere,  with  capability  of  self-preservation,  thereby  forming  a 
union  more  perfect  than  that  which  existed  under  the  old  Con- 
federacy. 

The  same  may  be  asserted  also  of  all  the  non-enumerated  powers 
included  in  the  authority  expressly  given  "to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  the 
specified  powers  vested  in  Congress,  and  all  other  powers  vested 
by  the  Constitution  in  the  government  of  the  United  States,  or 
in  any  department  or  officer  thereof."  .  .  . 

And  here  it  is  to  be  observed  it  is  not  indispensable  to  the  ex- 
istence of  any  power  claimed  for  the  Federal  government  that  it 
can  be  found  specified  in  the  words  of  the  Constitution,  or  clearly 
and  directly  traceable  to  some  one  of  the  specified  powers.  Its 
existence  may  be  deduced  fairly  from  more  than  one  of  the  sub- 
stantive powers  expressly  defined,  or  from  them  all  combined.  It 
is  allowable  to  group  together  any  number  of  them  and  infer  from 
them  all  that  the  power  claimed  has  been  conferred.  Such  a  treat- 
ment of  the  Constitution  is  recognized  by  its  own  provisions. 
This  is  well  illustrated  in  its  language  respecting  the  writ  of  habeas 
corpus.  The  power  to  suspend  the  privilege  of  that  WTit  is  not 
expressly  given,  nor  can  it  be  deduced  from  any  one  of  the  par- 
ticularized grants  of  power.    Yet  it  is  provided  that  the  privileges 


852  MONEY. 

of  the  writ  shall  not  be  suspended  except  in  certain  defined  con- 
tingencies. This  is  no  express  grant  of  power.  It  is  a  restriction. 
But  it  shows  irresistibly  that  somewhere  in  the  Constitution  power 
to  suspend  the  privilege  of  the  writ  was  granted,  either  by  some 
one  or  more  of  the  specifications  of  power,  or  by  them  all  com- 
bined. And,  that  important  powers  were  understood  by  the  people 
who  adopted  the  Constitution  to  have  been  created  by  it,  powers 
not  enumerated,  and  not  included  incidentally  in  any  one  of  those 
enumerated,  is  shown  by  the  amendments.  The  first  ten  of  these 
were  suggested  in  the  conventions  of  the  States,  and  proposed  at 
the  first  session  of  the  first  Congress,  before  any  complaint  was 
made  of  a  disposition  to  assume  doubtful  powers.  The  preamble 
to  the  resolution  submitting  them  for  adoption  recited  that  the 
"conventions  of  a  number  of  the  States  had,  at  the  time  of  their 
adopting  the  Constitution,  expressed  a  desire,  in  order  to  prevent 
misconstruction  or  abuse  of  its  powers,  that  further  declaratory 
and  restrictive  clauses  should  be  added."  This  was  the  origin  of 
the  amendments,  and  they  are  significant.  They  tend  plainly  to 
show  that,  in  the  judgment  of  those  who  adopted  the  Constitu- 
tion, there  were  powers  created  by  it,  neither  expressly  specified 
nor  deducible  from  any  one  specified  j)(nver,  or  ancillary  to  it  alone, 
but  which  grew  out  of  the  aggregate  of  powers  conferred  upon  the 
government,  or  out  of  the  sovereignty  instituted.  Most  of  these 
amendments  are  denials  of  power  which  had  not  been  expressly 
granted,  and  which  cannot  be  said  to  have  been  necessary  antl 
proper  for  carrying  into  execution  any  other  powers.  Such,  for 
example,  is  the  prohibition  of  any  laws  respecting  the  establish- 
ment of  religion,  prohibiting  the  free  exercise  thereof,  or  abridg- 
ing the  freedom  of  speech  or  of  the  press. 

And  it  is  of  importance  to  observe  that  Congress  has  often 
exercised,  without  question,  powers  that  are  not  expressly  given 
nor  ancillary  to  any  single  enumerated  power.  Powers  thus 
exercised  are  what  are  called  by  Judge  Storj'  in  his  Commentaries 
on  the  Constitution,  resulting  powers,  arising  from  the  aggregate 
powers  of  the  government.  He  instances  the  right  to  sue  and 
make  contracts.  Many  others  might  be  given.  The  oath  re- 
quired by  law  from  oflicers  of  the  government  is  one.  So  is  build- 
ing a  capitol  or  a  presidential  mansion,  and  so  also  is  the  penal 
code.  This  last  is  worthy  of  brief  notice.  Congress  is  expressly 
authorized  "to  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States,  and  to  define  and 
punish  piracies  and  felonies  committed  on  the  high  seas  and 


LEGAL  TENDER  CASES.  853 

offences  against  the  law  of  nations."  It  is  also  empowered  to 
declare  the  punishment  of  treason,  and  provision  is  made  for 
impeachments.  This  is  the  extent  of  power  to  punish  crime  ex- 
pressly conferred.  It  might  be  argued  that  the  expression  of 
these  limited  powers  implies  an  exclusion  of  all  other  subjects 
of  criminal  legislation.  Such  is  the  argument  in  the  present 
cases.  .  .  . 

Before  we  can  hold  the  legal  tender  acts  unconstitutional,  we 
must  be  conv-inced  they  were  not  appropriate  means,  or  means 
conducive  to  the  execution  of  any  or  all  of  the  powers  of  Con- 
gress, or  of  the  government,  not  appropriate  in  any  plain  degree 
(for  we  are  not  judges  of  the  degree  of  appropriateness),  or  we 
must  hold  that  they  were  prohibited.  This  brings  us  to  the  inquiry 
whether  they  were,  when  enacted,  appropriate  instrumentalities 
for  carrying  into  effect,  or  executing  any  of  the  knowm  powers  of 
Congress,  or  of  any  department  of  the  government.  Plainly  to 
this  inquiry,  a  consideration  of  the  time  when  they  were  enacted, 
and  of  the  circumstances  in  which  the  government  then  stood,  is 
important.  It  is  not  to  be  denied  that  acts  may  be  adapted  to  the 
exercise  of  lawful  power,  and  appropriate  to  it,  in  seasons  of  exi- 
gency, which  would  be  inappropriate  at  other  times. 

We  do  not  propose  tg  dilate  at  length  upon  the  circumstances 
in  which  the  country  was  placed,  when  Congress  attempted  to 
make  treasury  notes  a  legal  tender.  They  are  of  too  recent  oc- 
currence to  justify  enlarged  description.  Suffice  it  to  say  that  a 
civil  war  was  then  raging  which  seriously  threatened  the  over- 
throw of  the  government  and  the  destruction  of  the  Constitution 
itself.  .  .  . 

It  was  at  such  a  time  and  in  such  an  emergency  that  the  legal 
tender  acts  were  passed.  Now,  if  it  were  certain  that  nothing  else 
would  have  supplied  the  absolute  necessities  of  the  treasury,  that 
nothing  else  would  have  enabled  the  government  to  maintain  its 
armies  and  na\'\%  that  nothing  else  would  have  saved  the  gov- 
ernment and  the  Constitution  from  destruction,  while  the  legal 
tender  acts  would,  could  any  one  be  bold  enough  to  assert  that 
Congress  transgressed  its  powers?  .  .  . 

But  if  it  be  conceded  that  some  other  means  might  have 
been  chosen  for  the  accomplishment  of  these  legitimate  and 
necessary  ends,  the  concession  does  not  weaken  the  argu- 
ment. .  .  . 

It  is  plain  to  our  view,  however,  that  none  of  those  measures 
which  it  is  now  conjectured  might  have  been  substituted  for  the 


854  MONEY. 

legal  tender  acts,  could  have  met  the  exigencies  of  the  ca«e,  at 
the  time  when  those  acts  were  passed.  ...  • 

It  may  be  conceded  that  Congress  is  not  authorized  to  enact 
laws  in  furtherance  even  of  a  legitimate  end,  merely  because  they 
are  useful,  or  because  they  make  the  government  stronger.  There 
must  be  some  relation  between  the  means  and  the  end;  some 
adaptedness  or  appropriateness  of  the  laws  to  carry  into  execu- 
tion the  powers  created  by  the  Constitution.  .  .  . 

Concluding,  then,  that  the  provision  which  made  treasury  notes 
a  legal  tender  for  the  payment  of  all  debts  other  than  those  ex- 
pressly excepted,  was  not  an  inappropriate  means  for  carrying 
into  execution  the  legitimate  powers  of  the  government,  we  pro- 
ceed to  inquire  whether  it  was  forbidden  by  the  letter  or  spirit  of 
the  Constitution.  It  is  not  claimed  that  any  express  prohibition 
exists,  but  it  is  insisted  that  the  spirit  of  the  Constitution  was 
violated  by  the  enactment.  Here  those  who  assert  the  uncon- 
stitutionality of  the  acts  mainly  rest  their  argument.  They  claim 
that  the  clause  which  conferred  upon  Congress  power  "to  coin 
money,  regulate  the  value  thereof,  and  of  foreign  coin,"  contains 
an  implication  that  nothing  but  that  which  is  the  subject  of  coin- 
age, nothing  but  the  precious  metals  can  ever  be  declared  by  law 
to  be  money,  or  to  have  the  uses  of  money.  If  by  this  is  meant 
that  because  certain  powers  over  the  currency  are  expressly  given 
to  Congress,  all  other  powers  relating  to  the  same  subject  are 
impliedly  forbidden,  we  need  only  remark  that  such  is  not  the 
manner  in  which  the  Constitution  has  always  been  con- 
strued. .  .  . 

To  assert,  then,  that  the  clause  enabling  Congress  to  coin  money 
and  regulate  its  value  tacitly  implies  a  denial  of  all  other  power 
over  the  currency  of  the  nation,  is  an  attempt  to  introduce  a  new 
rule  of  construction  against  the  solemn  decisions  of  this  court.  So 
far  from  its  containing  a  lurking  prohibition,  many  have  thought 
it  was  intended  to  confer  upon  Congress  that  general  power  over 
the  currency  which  has  always  been  an  acknowledged  attribute 
of  sovereignty  in  every  other  civilized  nation  than  our  own, 
especially  when  considered  in  connection  with  the  other  clause 
which  denies  to  the  States  the  power  to  coin  money,  emit  bills  of 
credit,  or  make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts.  We  do  not  assert  this  now,  but  there  are  some 
considerations  touching  these  clauses  which  tend  to  show  that  if 
any  implications  are  to  be  deduced  from  them,  they  are  of  an 
enlarging  rather  than  a  restraining  character.    The  Constitution 


LEGAL   TENDER   CASES.  855 

was  intended  to  frame  a  government  as  distinguished  from  a 
league  or  compact,  a  government  supreme  in  some  particulars 
over  States  and  people.  It  was  designed  to  provide  the  same  cur- 
rency, having  a  uniform  legal  value  in  all  the  States.  It  was  for 
this  reason  the  power  to  coin  money  and  regulate  its  value  was 
conferred  upon  the  Federal  government,  while  the  same  power 
as  well  as  the  power  to  emit  bills  of  credit  was  withdrawn  from 
the  States.  The  States  can  no  longer  declare  what  shall  be  money, 
or  regulate  its  value.  Whatever  power  there  is  over  the  currency 
is  vested  in  Congress.  If  the  power  to  declare  what  is  money  is  not 
in  Congress,  it  is  annihilated.  This  may  indeed  have  been  in- 
tended. Some  powers  that  usually  belong  to  sovereignties  were 
extinguished,  but  their  extinguishment  was  not  left  to  inference. 
In  most  cases,  if  hot  in  all,  when  it  was  intended  that  governmental 
powers,  commonly  acknowledged  as  such,  should  cease  to  exist, 
both  in  the  States  and  in  the  Federal  govermnent,  it  was  expressly 
denied  to  both,  as  well  to  the  United  States  as  to  the  individual 
States.  And  generally,  when  one  of  such  powers  was  expressly 
denied  to  the  States  only,  it  was  for  the  purpose  of  rendering  the 
Federal  power  more  complete  and  exclusive.  Why,  then,  it  may 
be  asked,  if  the  design  was  to  prohibit  to  the  new  government,  as 
well  as  to  the  States,  that  general  power  over  the  currency  which 
the  States  had  when  the  Constitution  was  framed,  was  such  denial 
not  expressly  extended  to  the  new  government,  aS  it  was  to  the 
States?  In  view  of  this  it  might  be  argued  with  much  force  that 
when  it  is  considered  in  what  brief  and  comprehensive  terms  the 
Constitution  speaks,  how  sensible  its  framers  must  have  been  that 
emergencies  might  arise  when  the  precious  metals  (then  more 
scarce  than  now)  might  prove  inadequate  to  the  necessities  of  the 
government  and  the  demands  of  the  people  —  when  it  is  remem- 
bered that  paper  money  was  almost  exclusively  in  use  in  the 
States  as  the  medium  of  exchange,  and  when  the  great  evil  sought 
to  be  remedied  was  the  want  of  uniformity  in  the  current  value 
of  money,  it  might  be  argued,  we  say,  that  the  gift  of  power  to 
coin  money  and  regulate  the  value  thereof,  was  understood  as  con- 
veying general  power  over  the  currency,  the  power  which  had 
belonged  to  the  States,  and  which  they  surrendered.  Such  a  con- 
struction, it  might  be  said,  would  be  in  close  analogy  to  the  mode 
of  construing  other  substantive  powers  granted  to  Congress. 
They  have  never  been  construed  literally,  and  the  government 
could  not  exist  if  they  were.  Thus  the  power  to  carry  on  war  is 
conferred  by  the  power  to  "declare  war."    The  whole  system  of 


856  MONEY. 

the  transportation  of  the  mails  is  built  upon  the  power  to  estab- 
lish post-offices  and  post-roads.  The  power  to  regulate  commerce 
has  also  been  extended  far  beyond  the  letter  of  the  grant.  Even 
the  advocates  of  a  strict  literal  construction  of  the  phrase,  "to 
coin  money  and  regulate  the  value  thereof,"  while  insisting  that 
it  defines  the  material  to  be  coined  as  metal,  are  compelled  to  con- 
cede to  Congress  large  discretion  in  all  other  particulars.  The 
Constitution  does  not  ordain  what  metals  may  be  coined,  or  pre- 
scribe that  the  legal  value  of  the  metals,  when  coined,  shall  cor- 
respond at  all  with  their  intrinsic  value  in  the  market.  Nor  does 
it  even  affirm  that  Congress  may  declare  anything  to  be  a  legal 
tender  for  the  payment  of  debts.  .  .  .  How  then  can  the  grant 
of  a  power  to  coin  money  and  regulate  its  value,  made  in  terms 
so  liberal  and  unrestrained,  coupled  also  with  a  denial  to  the 
States  of  all  power  over  the  currency,  be  regarded  as  an  im- 
plied prohibition  to  Congress  against  declaring  treasury  notes 
a  legal  tender,  if  such  declaration  is  appropriate,  and  adapted 
to  carrying  into  execution  the  admitted  powers  of  the  govern- 
ment? 

We  do  not,  however,  rest  our  assertion  of  the  power  of  Congress 
to  enact  legal  tender  laws  upon  this  grant.  We  assert  only  that 
the  grant  can,  in  no  just  sense,  be  regarded  as  containing  an  im- 
plied prohibition  against  their  enactment,  and  that,  if  it  raises 
any  implications,  they  are  of  complete  power  over  the  currency, 
rather  than  restraining. 

We  come  next  to  the  argument  much  used,  and,  indeed,  the 
main  reliance  of  those  who  assert  the  unconstitutionality  of  the 
legal  tender  acts.  It  is  that  they  are  prohibited  by  the  spirit  of 
the  Constitution  because  they  indirectly  impair  the  obligation  of 
contracts.  The  argument,  of  course,  relates  only  to  those  con- 
tracts which  were  made  before  February,  1862,  when  the  first  act 
was  passed,  and  it  has  no  bearing  upon  the  question  whether  the 
acts  are  valid  when  applied  to  contracts  made  after  their  passage. 
The  argument  assumes  two  things,  —  first,  that  the  acts  do,  in 
effect,  impair  the  obligation  of  contracts,  and  second,  that  Con- 
gress is  prohibited  from  taking  any  action  which  may  indirectly 
have  that  effect.  Neither  of  these  assumptions  can  be  accepted. 
It  is  true  that  under  the  acts,  a  debtor,  who  became  such  before 
they  were  passed,  may  discharge  his  debt  with  the  notes  author- 
ized by  them,  and  the  creditor  is  compellable  to  receive  such  notes 
in  discharge  of  his  claim.    But  whether  the  obligation  of  the  con- 


LEGAL   TENDER   CASES.  857 

tract  is  thereby  weakened  can  be  determined  only  after  consider- 
ing what  was  the  contract  obligation.  It  was  not  a  duty  to  pay 
gold  or  silver,  or  the  kind  of  money  recognized  by  law  at  the  time 
when  the  contract  was  made,  nor  was  it  a  duty  to  pay  money  of 
equal  intrinsic  value  in  the  market.  (We  speak  now  of  contracts 
to  pay  money  generally,  not  contracts  to  pay  some  specifically 
defined  species  of  money.)  .  .  .  Every  contract  for  the  payment 
of  money,  simply,  is  necessarily  subject  to  the  constitutional 
power  of  the  government  over  the  currency,  whatever  that  power 
may  be,  and  the  obligation  of  the  parties  is,  therefore,  assumed 
with  reference  to  that  power.  .  .  .  We  have  been  asked  whether 
Congress  can  declare  that  a  contract  to  deliver  a  quantity  of  grain 
may  be  satisfied  by  the  tender  of  a  less  quantity.  Undoubtedly 
not.  But  this  is  a  false  analogy.  There  is  a  wide  distinction  be- 
tween a  tender  of  quantities,  or  of  specific  articles,  and  a  tender 
of  legal  values.  Contracts  for  the  delivery  of  specific  articles 
belong  exclusively  to  the  domain  of  State  legislation,  while 
contracts  for  the  payment  of  money  are  subject  to  the  author- 
it3'  of  Congress,  at  least  so  far  as  relates  to  the  means  of 
payment.  .  .  . 

Nor  can  it  be  truly  asserted  that  Congress  may  not,  by  its 
action,  indirectly  impair  the  obligation  of  contracts,  if  by  the  ex- 
pression be  meant  rendering  contracts  fruitless,  or  partially  fruit- 
less. Directly  it  may,  confessedly,  by  passing  a  bankrupt  act, 
embracing  past  as  well  as  future  transactions.  This  is  obliterat- 
ing contracts  entirely.  So  it  may  relieve  parties  from  their  ap- 
parent obligations  indu-ectly  in  a  multitude  of  ways.  ...  It  is, 
then,  clear  that  the  powers  of  Congress  may  be  exerted,  though 
the  effect  of  such  exertion  may  be  in  one  case  to  annul,  and  in 
other  cases  to  impair  the  obligation  of  contracts.  And  it  is  no 
sufficient  answer  to  this  to  say  it  is  true  only  when  the  powers 
exerted  were  expressly  granted.  There  is  no  ground  for  any  such 
distinction.  It  has  no  warrant  in  the  Constitution,  or  in  any  of 
the  decisions  of  this  court.  We  are  accustomed  to  speak  for  mere 
convenience  of  the  express  and  implied  powers  conferred  upon 
Congress.  But  in  fact  the  auxiliary  powers,  those  necessary  and 
appropriate  to  the  execution  of  other  powers  singly  described,  are 
as  expressly  given  as  is  the  power  to  declare  war,  or  to  establish 
uniform  laws  on  the  subject  of  bankruptcy.  They  are  not  cata- 
logued, no  list  of  them  is  made,  but  they  are  grouped  in  the 
last  clause  of  section  eight  of  the  first  article,  and  granted  in  the 
same  words  in  which  all  other  powers  are  granted  to  Congress. 


858  MONEY. 

And   this  court  has   recognized   no  such   distinction  as  is  now 
attempted.  .  .  . 

If,  then,  the  legal  tender  acts  were  justly  chargeable  with  im- 
pairing contract  obligations,  they  would  not,  for  that  reason,  be 
forbidden,  unless  a  different  rule  is  to  be  applied  to  them  from  that 
which  has  hitherto  prevailed  in  the  construction  of  other  powers 
granted  by  the  fundamental  law.  .  .  . 

Closely  allied  to  the  objection  we  have  just  been  considering 
is  the  argument  pressed  upon  us  that  the  legal  tender  acts  were 
prohibited  by  the  spirit  of  the  fifth  amendment,  which  forbids 
taking  private  property  for  public  use  without  just  compensation 
or  due  process  of  law.  That  provision  has  always  been  under- 
stood as  referring  only  to  a  direct  appropriation,  and  not  to  con- 
sequential injuries  resulting  from  the  exercise  of  lawful  power.  It 
has  never  been  supposed  to  have  any  bearing  upon,  or  to  inhibit 
laws  that  indirectly  work  harm  and  loss  to  individuals.  A  new 
tariff,  an  embargo,  a  draft,  or  a  war  may  inevitably  bring  upon 
individuals  great  losses;  may,  indeed,  render  valuable  property 
almost  valueless.  They  may  destroy  the  worth  of  contracts.  But 
who  ever  supposed  that,  because  of  this,  a  tariff  could  not  be 
changed,  or  a  non-intercourse  act,  or  an  embargo  ))e  enacted,  or 
a  war  be  declared?  By  the  act  of  June  28,  1834,  a  new  regulation 
of  the  weight  and  value  of  gold  coin  was  adopted,  and  about  six 
per  cent  was  taken  from  the  weight  of  each  dollar.  The  effect  of 
this  -was  that  all  creditors  were  subjected  to  a  corresponding 
loss.  The  debts  then  due  became  solvable  with  six  per  cent 
less  gold  than  was  required  to  pay  them  before.  The  result 
was  thus  precisely  what  it  is  contended  the  legal  tender  acts 
worked.  But  was  it  ever  imagined  this  was  taking  private 
property  without  compensation  or  without  due  process  of 
law?  .  .  . 

Here  we  might  stop;  but  we  will  notice  briefly  an  argument 
presented  in  support  of  the  position  that  the  unit  of  money  value 
must  possess  intrinsic  value.  The  argument  is  derived  from  assimi- 
lating the  constitutional  provision  respecting  a  standard  of  weights 
and  measures  to  that  conferring  the  power  to  coin  money  and 
regulate  its  value.  It  is  said  there  can  be  no  uniform  standard  of 
weights  without  weight,  or  of  measure  without  length  or  space, 
and  we  are  asked  how  anjrthing  can  be  made  a  uniform  standard 
of  value  which  has  itself  no  value?  This  is  a  question  foreign  to 
the  subject  before  us.  The  legal  tender  acts  do  not  attempt  to 
make  paper  a  standard  of  value.     We  do  not  rest  their  validity 


LEGAL  TENDER   CASES.  859 

upon  the  assertion  that  their  emission  is  coinage,  or  any  regulation 
of  the  value  of  mone}-;  nor  do  we  assert  that  Congress  may  make 
anything  which  has  no  value  money.  What  we  do  assert  is,  that 
Congress  has  power  to  enact  that  the  goverrmient's  promises  to 
pay  money  shall  be,  for  the  time  being,  equivalent  in  value  to  the 
representative  of  value  determined  by  the  coinage  acts,  or  to 
multiples  thereof.  It  is  hardly  correct  to  speak  of  a  standard  of 
value.  The  Constitution  does  not  speak  of  it.  It  contemplates  a 
standard  for  that  which  has  gravity  or  extei^sion;  but  value  is  an 
ideal  thing.  The  coinage  acts  fix  its  unit  as  a  dollar;  but  the  gold 
or  silver  thing  we  call  a  dollar  is,  in  no  sense,  a  standard  of  a  dol- 
lar. It  is  a  representative  of  it.  There  might  never  have  been  a 
piece  of  money  of  the  denomination  of  a  dollar.  There  never  was 
a  pound  sterling  coined  until  1815,  if  we  except  a  few  coins  struck 
in  the  reign  of  Henry  VIII,  almost  immediately  debased,  yet  it 
has  been  the  unit  of  British  currency  for  many  generations.  It  is, 
then,  a  mistake  to  regard  the  legal  tender  acts  as  either  fixing  a 
standard  of  value  or  regulating  money  values,  or  making  that 
money  which  has  no  intrinsic  value. 

But,  without  extending  our  remarks  further,  it  will  be  seen  that 
we  hold  the  acts  of  Congress  constitutional  as  applied  to  contracts 
made  either  before  or  after  their  passage.  In  so  holding,  we  over  - 
rule  so  much  of  what  was  decided  in  Hepburn  v.  Griswold,  8  Wal 
lace,  603,  as  ruled  the  acts  unwarranted  by  the  Constitution  so 
far  as  they  apply  to  contracts  made  before  their  enactment.  Thac 
case  was  decided  by  a  divided  court,  and  by  a  court  having  a  less 
number  of  judges  than  the  law  then  in  existence  provided  this 
court  shall  have.  These  cases  have  been  heard  before  a  full  court, 
and  they  have  received  our  most  careful  consideration.  The  ques 
tions  involved  are  constitutional  questions  of  the  most  vital  im- 
portance to  the  government  and  to  the  pubUc  at  large.  We  have 
been  in  the  habit  of  treating  cases  involving  a  consideration  of 
constitutional  power  differently  from  those  which  concern  merely 
private  right.  Briscoe  v.  Bank  of  Kentucky,  8  Peters,  118.  Wo 
are  not  accustomed  to  hear  them  in  the  absence  of  a  full  court,  if 
it  can  be  avoided.  Even  iii  cases  involving  only  private  rights,  \L 
convinced  we  had  made  a  mistake,  we  would  hear  another  argu-- 
ment  and  correct  our  error.  And  it  is  no  unprecedented  thing  in 
courts  of  last  resort,  both  in  this  country  and  in  England,  to  over- 
rule decisions  previously  made.  We  agree  this  should  not  be  done 
inconsiderately,  but  in  a  case  of  such  far-reaching  consequences  as 
the  present,  thoroughly  convinced  as  we  are  that  Congress  has 


860  MONEY. 

not  trangressed  its  powers,  we  regard  it  as  our  duty  so  to  decide 
and  to  affirm  both  these  judgments. 

The  other  questions  raised  in  tiie  case  of  Knox  v.  Lee  were  sub- 
stantially decided  in  Texas  v.  White,  7  Wallace,  700. 

Judgment  in  each  case  affirmed.^ 

Bradley,  J.,  concurring.  .  .  . 

Chase,  C.  J.,  dissenting.  .  .  . 

My  l)rothers  Clifford  and  Field  concur  in  these  views,  but 
in  consideration  of  the  importance  of  the  principles  involved  will 
deliver  their  separate  opinions.    My  brother  Nelson  also  dissents. 

Clifford,  J.,  dissenting.  .  .  . 

Field,  J.,  dissenting.  .  .  . 


POINDEXTER  v.   GREENHOW. 
Supreme  Court  of  the  United  States.     1885. 

[114  United  Slates,  270.]- 

Error  to  the  Hustings  Court  of  the  City  of  Richmond,  Virginia. 

Before  a  police  justice  Poindextcr  brought  an  action  of  detinue 
against  Greenhow,  city  treasurer,  for  the  recovery  of  an  office 
desk  of  the  value  of  $30.  The  court  dismissed  the  action  for 
want  of  jurisdiction.  An  appeal  was  taken  to  the  Hustings 
Court,  where  by  agreement  the  facts  were  found  to  be  that  the 
plaintiff  owed  $12.45  taxes,  that  the  defendant  as  collector  made 
demand  of  payment,  that  the  plaintiff  tendered  in  payment 
forty-five  cents  in  lawful  money  of  the  United  States  and  $12 
in  coupons  from  bonds  issued  by  the  State  of  Virginia  under  an 
act  of  March  30,  1871,  which  declared  such  coupons  receivable 
after  maturity  for  taxes,  that  the  coupons  were  past  maturity, 
that  the  tender  was  refused,  and  that  the  defendant  levied  upon 
and  still  held  the  desk  for  the  purpose  of  selling  it  to  pay  the  taxes, 
and  had  refused  to  return  it  on  demand.  The  Hustings  Court 
gave  judgment  for  the  defendant,  in  reliance  upon  an  act  of 
January  26,    1882,   which,   among  other  things,   prohibited  re- 

1  See  Lane  County  v.  Oregon,  7  Wall.  71  (1869);  Hepburn  v.  Griswold,  8 
Wall.  603  (1870);  and  Juilliard  v.  Greenman  (Legal  Tender  Case),  110  U.  S. 
421  (1884).  — Ed. 

^  A  statement  has  been  framed  upon  the  opinion  of  the  court.  The  case  is 
one  of  a  group  frequently  called  the  Virginia  Coupon  Cases.  —  Ed. 


POIXDEXTER   V.    GREENHOW.  861 

ceiving  coupons  for  taxes.  The  latter  act  was  attacked  as  im- 
pairing the  obligation  of  contracts;  and  the  Hustings  Court  was 
the  highest  State  tribunal  to  which  the  case  could  be  taken. 

W.  L.  Roy  all  and  others,  for  plaintiff  in  error;  and  F.  S.  Blair, 
Attorney  General  of  Virginia,  and  others,  contra. 

Matthews,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  case,  then,  of  the  plaintiff  below  is  reduced  to  this.  He 
had  paid  the  taxes  demanded  of  him  by  a  lawful  tender.  The 
defendant  had  no  authority  of  law  thereafter  to  attempt  to  en- 
force other  payment  by  seizing  his  property.  'In  doing  so,  he 
ceased  to  be  an  officer  of  the  law,  and  became  a  private  wrong- 
doer. It  is  the  simple  case  in  which  the  defendant,  a  natural 
private  person,  has  unlawfully,  with  force  and  arms,  seized, 
taken  and  detained  the  personal  property  of  another.  That  an 
action  of  detinue  will  lie  in  such  a  case,  according  to  the  law  of 
Virginia,  has  not  been  questioned.  The  right  of  recovery  would 
seem  to  be  complete,  unless  this  case  can  be  met  and  overthrown 
on  some  of  the  grounds  maintained  in  argument  bj^  counsel  for 
the  defendant  in  error.  These  we  proceed  now  to  examine  in 
their  order. 

It  is  objected,  in  the  first  place,  that  the  law  and  contract,  by 
which  the  qualitj'  of  being  receivable  in  payment  of  taxes  to  the 
State  is  imputed  to  the  coupons,  is  itself  in  violation  of  that 
clause  of  the  Constitution  of  the  United  States,  Art.  I,  §  10,  which 
declares  that  no  State  shall  "emit  bills  of  credit,"  and  is  therefore 
void. 

The  coupons  in  question  are  in  the  ordinary  form,  and  one  of 
them  reads  as  follows: 

"Receivable  at  and  after  maturity  for  all  taxes,  debts  and  de- 
mands due  the  State. 

"The  Commonwealth  of  Virginia  will  pay  the  bearer  thirty 
dollars  interest  due  1st  January,  1884,  on  bond  No.  2731. 

"Coupon  No.  20. 

"Geo.  Rye,  Treasurer." 

It  is  contended  that  this  is  a  bill  of  credit  in  the  sense  of  the 
Constitution,  because,  being  receivable  in  payment  of  debts  due 
the  State  and  negotiable  by  delivery  merely,  it  was  intended  to 
pass  from  hand  to  hand  and  circulate  as  money. 

The  meaning  of  the  term  "bills  of  credit,"  as  used  in  the  Con- 
stitution, has  been  settled  bj-  decisions  of  this  court.    By  a  sound 


862  MONEY. 

rule  of  interpretation,  it  has  been  construed  in  the  light  of  the 
historical  circumstances  which  are  known  to  have  led  to  the 
adoption  of  the  clause  prohibiting  their  emission  by  the  States, 
and  in  view  of  the  great  public  and  private  mischiefs  experienced 
during  and  prior  to  the  period  of  the  War  of  Independence,  in 
consequence  of  unrestrained  issues,  by  the  Colonial  and  State 
governments,  of  paper  money,  based  alone  upon  credit.  The 
definition  thus  deduced-  was  not  founded  on  the  abstract  mean- 
ing of  the  words,  so  as  to  include  everything  in  the  nature  of  an 
obligation  to  pay  money,  reposing  on  the  public  faith,  and  sub- 
ject to  future  redemption,  but  was  limited  to  those  particular 
forms  of  evidences  of  debt,  which  had  been  so  abused  to  the  detri- 
ment of  both  private  and  public  interests.  Accordingly,  Chief 
Justice  Marshall,  in  Craig  v.  Missouri,  4  Pet.  410,  432,  said,  that 
"bills  of  credit  signify  a  paper  medium  intended  to  circulate  be- 
tween individuals,  and  between  government  and  individuals,  for 
the  ordinary  purposes  of  society."  This  definition  was  made 
more,  exact,  by  merely  expressing,  however,  its  implications,  in 
Briscoe  v.  The  Bank  of  Kentucky,  11  Pet.  257,  314,  where  it  was 
said:  "The  definition,  then,  which  does  include  all  classes  of  bills 
of  credit,  emitted  by  the  colonies  or  States,  is  a  paper  issued  by 
the  sovereign  power,  containing  a  pledge  of  its  faith  and  designed 
to  circulate  as  money."  And  again,  p.  318,  "To  constitute  a 
bill  of  credit,  within  the  Constitution,  it  must  be  issued  by  a 
State,  on  the  faith  of  the  State,  and  be  designed  to  circulate  as 
money.  It  must  be  a  paper  which  circulates  on  the  credit  of  the 
State,  and  is  so  received  and  used  in  the  ordinary  business  of 
life."  The  definition  was  repeated  in  Darrington  v.  The  Bank  of 
Alabama,  13  How.  12. 

It  is  very  plain  to  us  that  the  coupons  in  question  are  not  em- 
braced within  these  terms.  They  are  not  bills  of  credit  in  the  sense 
of  this  constitutional  prohibition.  They  are  issued  by  the  State, 
it  is  true.  They  are  promises  to  pay  money.  Their  payment 
and  redemption  are  based  on  the  credit  of  the  State,  but  they 
were  not  emitted  by  the  State  in  the  sense  in  wliich  a  govern- 
ment emits  its  treasury  notes,  or  a  bank  its  bank  notes  —  a  cir- 
culating medium  or  paper  currency  —  as  a  substitute  for  money. 
And  there  is  nothing  on  the  face  of  the  instruments,  nor  in  their 
form  or  nature,  nor  in  the  terms  of  the  law  which  authorized 
their  issue,  nor  in  the  circumstances  of  their  creation  or  use,  as 
shown  by  the  record,  on  which  to  found  an  inference  that  these 
coupons  were  designed  to  circulate,  in  the  common  transactions 


POINDEXTER   V.    GREENHOW.  863 

of  business,  as  money,  nor  that  in  fact  they  were  so  used.    The 
only  feature  relied  on  to  show  such  a  design  or  to  prove  such  a 
use  is,  that  they  are  made  receivable  in  pajTnent  of  taxes  and 
other  dues  to  the  State.    From  this,  it  is  argued,  that  they  would 
o})tain  such  a  circulation  from  hand  to  hand  as  money,  as  the  de- 
mand for  them,  based  upon  such  a  quality,  would  naturally  give. 
But  this  falls  far  short  of  their  fitness  for  general  circulation  in 
the  community,  as  a  representative  and  substitute  for  money,  in 
the  common  transactions  of  business,  which  is  necessary  to  bring 
them  within  the  constitutional  prohibition  against  bills  of  credit. 
The  notes  of  the  Bank  of  the  State  of  Arkansas,  which  were  the 
subject  of  controversy  in  Woodruff  v.  Trapnall,   10  How.   190, 
were,  by  law,  receivable  by  the  State  in  payment  of  all  dues  to 
it,  and  this  circumstance  was  not  supposed  to  make  them  bills 
of  credit.    It  is  true,  however,  that  in  that  case  it  was  held  they 
were  not  so  because  they  were  not  issued  by  the  State  and  in  its 
name,  although  the  entire  stock  of  the  bank  was  o\\Tied  by  the 
State,  which  furnished  the  whole  capital,  and  was  entitled  to  all 
the  profits.    In  this  case  the  coupons  were  issued  by  the  State  of 
Virginia  and  in  its  name,  and  were  obligations  based  on  its  credit, 
and  which  it  had  agreed  as  one  mode  of  redemption,  to  receive 
in  payment  of  all  dues  to  itself  in  the  hands  of  any  holder;  but 
they  were  not  issued  as  and  for  money,  nor  was  this  quality  im- 
pressed upon  them  to  fit  them  for  use  as  money,  or  with  the  de- 
sign to  facilitate  their  circulation  as  such.    It  was  conferred,  as 
is  apparent  from  all  the  circumstances  of  their  creation  and  issue, 
merely  as  an  assurance,  by  way  of  contract  with  the  holder,  of 
the  certainty,  of  their  due  redemption  in  the  ordinary  transac- 
tions between  the  State  treasury  and  the  taxpayers.     They  do 
not  become  receivable  in  payment  of  taxes  till  they  are  due,  and 
the  design,  we  are  bound  to  presume,  was  that  they  would  be 
paid  at  maturity.     This  necessarily  excludes  the  idea  that  they 
were  intended  for  circulation  at  all. 

It  is  next  objected,  that  the  suit  of  the  plaintiff  below  could 
not  be  maintained,  because  it  is  substantially  an  action  against 
the  State  of  Virginia,  to  which  it  has  not  assented.  .  .  . 

Reversed.  .  .  . 

Bradley,  J.,  with  whom  concurred  Waite,  C.  J.,  Miller,  J., 
and  Gray,  J.,  dissented.^ 

1  The  dissenting  opinion  may  be  found  in  Marye  v.  Parsons,  114  U.  S.  325, 
330  (1885),  where  it  is  said:   "The  fundamental  ground  of  our  dissent  is,  that 


864  MONEY. 

LING   SU   FAN   v.   UNITED   STATES. 
Supreme  Court  of  the  United  States.     1910. 

(218  United  States,  302.] ' 

Error  to  the  Supreme  Court  of  the  Philippine  Islands. 

In  the  Manila  Court  of  First  Instance  Ling  Su  Fan  was  con- 
victed of  exporting  Philippine  silver  coin  in  violation  of  Philip- 
pine Law  No.  1411.  The  law  in  question  was  enacted  by  the 
Philippine  Commission  under  authority  of  the  organic  act  of  Con- 
gress of  July  1,  1902  (32  Stat.  691),  which  provided,  among  other 
things,  that  "no  law  shall  he  enacted  in  said  islands  which  shall 
deprive  any  person  of  life,  liberty  or  property  without  due  process 
of  law,"  and  under  authority  of  the  act  of  Congress  of  March  3, 
1903  (32  Stat.  952),  which  provided  that  (§  1)  the  gold  peso 
should  be  the  standard  of  value  in  the  islanfls,  and  that  (§  2)  the 
Philippine  government  might  coin  a  certain  number  of  silver 
pesos,  and  (§6)  might  "  adopt  such  measures  as  it  may  deem 
proper,  not  inconsistent  with  such  act  of  July  1,  1902,  to  main- 
tain the  value  of  the  silver  Philippine  peso  at  the  rate  of  one  gold 
peso."  On  appeal  the  judgment  was  affirmed  by  the  Supreme 
Court  of  the  Philippine  Islands  (10  Philippine  Reports,  104). 

J.  M.  Vale  and  others,  for  plaintifT  in  error;  and  Fowler, 
Assistant  Attorney  General,  contra. 

Lurton,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  substantial  question  is  as  to  whether  a  law  which  pro- 
hibits the  exportation  of  Philippine  silver  coin  from  the  Philip- 
pine Islands  is  a  law  which  deprives  the  owner  of  his  property  in 
such  coins  without  due  process  of  law.  .  .  . 

The  law  of  the  Philippine  Commission,  .  .  .  under  which  the 
conviction  .  .  .  was  secured,  must  rest  upon  the  provision  of 
§  6,  ...  as  a  means  of  maintaining  "the  value  of  the  silver  peso 
at  the  rate  of  one  gold  peso."  Passing  by  any  consideration  of 
the  wisdom  of  such  a  law  prohibiting  the  exportation  of  the  Philip- 
pine Islands  silver  pesos  as  not  relevant  to  the  question  of  power, 
a  substantial  reason  for  such  a  law  is  indicated  by  the  fact  that 
the  bullion  value  of  such  coin  in  Hong  Kong  was  some  nine  per 

this  proceeding,  and  all  the  other  proceedings  on  these  coupons  brought  here 
for  our  review,  are  virtually  suits  against  the  State  of  Virginia,  to  compel  a 
specific  performance  by  the  State  of  her  agreement  to  receive  the  said  coupons 
in  payment  of  all  taxes,  dues  and  demands."  —  Ed. 

^  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


LING   SU   FAN   V.    UNITED   STATES.  865 

cent  greater  than  its  face  value.  The  law  was,  therefore,  adapted 
to  keep  the  silver  pesos  in  circulation  as  a  medium  of  exchange 
m  the  islands  and  at  a  parity  with  the  gold  peso  of  Philippine 
mintage. 

The  power  to  ''coin  money  and  regulate  the  value  thereof, 
and  of  foreign  coin,"  is  a  prerogative  of  sovereignty  and  a  power 
exclusively  vested  in  the  Congress  of  the  United  States.  The 
power  which  the  government  of  the  Philippine  Islands  has  in 
respect  to  a  local  coinage  is  derived  from  the  express  act  of  Con- 
gress. Along  with  the  power  to  strike  gold  and  silver  pesos  for 
local  circulation  in  the  islands  was  granted  the  power  to  provide 
such  measures  as  that  government  should  "deem  proper,"  not 
inconsistent  with  the  organic  law  of  July  1,  1902,  necessary  to 
maintain  the  parity  between  the  gold  and  silver  pesos.  Although 
the  Philippine  act  cannot,  therefore,  be  said  to  overstep  the  wide 
legislative  discretion  in  respect  of  measures  to  preserve  a  parity 
between  the  gold  and  silver  pesos,  yet  it  is  said,  that  if  the  par- 
ticular measure  resorted  to  be  one  which  operates  to  deprive  the 
owner  of  silver  pesos,  of  the  difference  between  their  bullion  and 
coin  value,  ho  has  had  his  property  taken  from  him  without  com- 
pensation, and,  in  its  wider  sense,  without  that  due  process  of 
law  guaranteed  by  the  fundamental  act  of  July,  1902. 

Conceding  the  title  of  the  owner  of  such  coins,  yet  there  is 
attached  to  such  o^\^lership  those  limitations  which  public  policy 
may  require  by  reason  of  their  quality  as. a  legal  tender  and  as 
a  medium  of  exchange.  These  Hmitations  are  due  to  the  fact 
that  public  law  gives  to  such  coinage  a  value  which  does  not  at- 
tach as  a  mere  consequence  of  intrinsic  value.  Their  quality  as 
a  legal  tender  is  an  attribute  of  law  aside  from  their  bullion  value. 
They  bear,  therefore,  the  impress  of  sovereign  power  which  fixes 
value  and  authorizes  their  use  in  exchange.  As  an  incident,  the 
Government  may  punish  defacement  and  mutilation  and  con- 
stitute any  such  act,  when  fraudulently  done,  a  misdemeanor 
Rev.  Stat.,  §§  5459,  5189. 

However  un\\ase  a  law  may  be,  aimed  at  the  exportation  of 
such  coins,  in  the  face  of  the  axioms  against  obstructing  the  free 
flow  of  commerce,  there  can  be  no  serious  doubt  but  that  the 
power  to  coin  money  includes  the  power  to  prevent  its  outflow 
from  the  country  of  its  origin.  To  justify  the  exercise  of  such  a 
power  it  is  only  necessary  that  it  shall  appear  that  the  means  are 
reasonably  adapted  to  conserve  the  general  public  interest  and 
are  not  an  arbitrary  interference  with  private  rights  of  contract 


866  MONEY. 

or  property.  The  law  here  in  question  is  plainly  within  the  limits 
of  the  police  power,  and  not  an  arbitrary  or  unreasonable  inter- 
ference with  private  rights.  If  a  local  coinage  was  demanded  by 
the  general  interest  of  the  Philippine  Islands,  legislation  reason- 
ably adequate  to  maintain  such  coinage  at  home  as  a  medium  of 
exchange  is  not  a  violation  of  private  right  forliidden  by  the  or- 
ganic law.  Obviously,  if  the  Philippine  government  had  power 
to  prohibit  the  exportation  or  melting  of  Philippine  silver  pesos, 
it  had  the  power  to  make  the  violation  of  the  prohibition  a  mis- 
demeanor. .  .  . 

Judgynent  affirmed. 


CHAPTER  III. 
THE  COMMERCE  CLAUSE  AND  KINDRED  TOPICS. 

Section  I. 
Decisions  before  the  Close  of  the  Civil  War. 

GIBBONS   V.   OGDEN. 
Supreme  Court  of  the  United  States.     1824. 

[9  Wheaton,  l.]i 

Error  to  the  Court  for  the  Trial  of  Impeachments  and  Cor- 
^rection  of  Errors  of  the  State  of  New  York. 

In  tjie  Court  of  Chancery  Ogden  prayed  an  injunction  to  re- 
^HaiILCi5SonsJrom_na\^^  between  Ehzabeth- 

^Q^:;i!!lJi£^LJg£g£yi.£g^^  Ihe  bill  set  iorfh 

agrr^f  the  l^gikul?r-^i  l\ew  VoS:  dvln"^  in  J  Unr.^.,.^  .^ 
i'_ulton  for  a  term  not  vet  exnirpd  fhp  .v.l.,.,...  .^^^^  ^^  n-i-Jritr 
with  steamboats  the  waters  oFthat  State;  and  it  stated  that 
psden  had  become  nfisifniee  of  jhej^^to  navigate  with  steam- 
boats the  waters  between  the  city  of  New  York  and  EHzabeth- 
town  and  other  places  in  New  Jersey,  and  that  Gibbon..  pnf..c^^,^..H 
two  steamboats,  the  Stoudinger  and  the  Bellona,^^McLwere  run- 
nm£_^)etwecnElizabethto^^^l  and  the  city  of  New  YJ^^JT^fhTT^- 
i'lnrtion  wnfi  granted  by  Kent,  C.  (4  Johns.  Ch.  150),  and  thT 
decree  was  affirm^  by  the  Court  of  Errors  (17  Johns.  488) 

Webster  and  Wirt,  Attorney  General,  for  appellant;  and  Oakley 
and  Emmet,  contra. 
Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 
As  preliminary  to  the  very  able  discussions  of  the  Constitution 
which  we  have  heard  from  the  bar,  and  as  having  some  influence 
on  Its  construction,  reference  has  been  made  to  the  political  situa- 
tion of  these  States,  anterior  to  its  formation.    It  ha^  been  said, 
that  they  were  sovereign,  were  completely  independent,  and  were 
connected  with  each  other  only  by  a  league.    This  is  true.    But, 
when  these  allied  sovereigns  converted  their  league  into  a  gov- 
ermnent,  when  they  converted  their  Congress  of  ambassadors, 
'  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 

867 


868     commerce:   decisions  before  close  of  civil  war. 

deputed  to  deliberate  on  their  common  concerns,  and  to  recom- 
mend measures  of  general  utility,  into  a  legislature,  empowered 
to  enact  laws  on  the  most  interesting  subjects,  the  whole  char- 
acter in  which  the  States  appear,  underwent  a  change,  the  extent 
of  which  must  be  determined  by  a  fair  consideration  of  the  in- 
strument l)y  which  that  change  was  effected. 

This  instrument  contains  an  enumeration  of  p'^^-^'j-f^  pypm^cKr 
granted  by  the  people  to  their  government.  It  has  been  said , 
thaFthese  powers  ought  to  be  construed  strictly!  But  why 
ought  they  to  be  so  construed?  Is  there  one  sentence  in  the  Con- 
stitution which  gives  countenance  to  this  rule?  In  the  last  of 
the  enumerated  powers,  that  which  grants,  expressly,  the  means 
for  carrying  all  others  into  execution,  Congress  is  authorized  "to 
make  all  laws  which  shall  be  necessary  and  proper"  for  the  pur- 
pose. But  this  limitation  on  the  means  which  may  be  used,  is 
not  extended  to  the  powers  which  are  conferred:  nor  is  there  one^ 
sentence  in  the  Constitution,  which  has  been  pointed  out  by  the 
gentlemen  ofthe  bar,  or  which  we  have  been  ahle  to  discern, 
fT^Qfj2rPQrMMhPs^?his  rule.  We  do  not,  therefore,  tiimk  ourselves 
justified  in  adopting'^it.  WlTat  tlo  gentlem(>n  mean,  by  a  strict 
" construction?  If  they  contend  onlv  against  that  enlarged  construc- 
tion, which  would  extend  words Tt^yond  their  natural  and  obvious 
import,  we  might  question  the  application  of  the  term,  but  should 
not  controvert  the  principle.  If  they  contend  for  that  narrow 
CQjistruction  which,  in  support  of  some  theory  not  to  be  found  in 
the  Constitution,  would  deny  to  the  government^hose  powers 
which  the  -ffiiirds  of  the  grant,  as  usually  understood,  import,  and 
'which  are  consistent  with  the  general  vie\^and  objects  of  the 
instrument;  for  that  naijTQW  construction,  w^ch  would  cripple 
the  government,  and  render  it' unequal  to  the  objects  for  which 
it  is  declared  to  be  instituted,  and  to  which  the  powers  given,  as 
fairly  understood,  render  it  competent;  then  we  cannot  perceive 
the  propriety  of  this  strict  construction,  nor  adopt  it  as  the  rule 
by  which  the  Constitution  is  to  be  expounded.  As  men,  whose 
intentions  require  no  concealment,  generally  employ  the  words 
which  most  directly  and  aptly  express  the  ideas  they  intend  to 
convey,  the  enlightened  patriots  who  framed  our  Constitution, 
and  the  people  who  adopted  it,  must  be  understood  to  have  em- 
ployed words  in  their  natural  sense,  and  to  have  intended  what 
they  have  said.  If,  from  the  imperfection  of  human  language, 
there  should  be  serious  doubts  respecting  the  extent  of  any  given 
power,  it  is  a  well  settled  rule,  that  the  objects  for  which  it  was 


'  GIBBONS   V.   OGDEN.  869 

given,  especially  when  those  objects  are  expressed  in  the  instru- 
ment itself,  should  have  great  influence  in  the  construction.  We 
know  of  no  reason  for  excluding  this  rule  from  the  present  case. 
The  grant  does  not  convey  power  which  might  be  beneficial  to 
the  grantor,  if  retained  by  himself,  or  which  can  enure  solely  to 
the  benefit  of  the  grantee;  but  is  an  investment  of  power  for  the 
general  advantage,  in  the  hands  of  agents  selected  for  that  pur- 
pose; which  power  can  never  be  exercised  by  the  people  them- 
selves, but  must  be  placed  in  the  hands  of  agents,  or  lie  dormant. 
We  know  of  no  rule  for  construing  the  extent  of  such  powers, 
other  than  is  given  bv  the  language  ot'  the  mstrumcnt  wliich'cofP 
fers'^them,  taken  in  connection  with  the  purposes  for  which  they 
Ifere  conferred^^^.-^'*'*^ 

The  word[»^e^  "Congrp^vs  shal]  hiv"  pn^^^r  tn  rpg"l'^tp  pom- 
merce  wit£  foreign  nations,  and  among  the  several  States,  and 
with  the  Indian  tribes." 

The  subject  to  be  regulated  is  commerce;  and  our  Constitu- 
tion being,  as  was  aptly  said  at  the  bar,  one  of  enumeration,  and 
not  of  definition,  to  ascertain  the  extent  of  the  power,  it  becomes 
necessary  to  settle  the  meaning  of  the  word.  The  counsel  for 
the  ajjpellee  would  hmit  it  to  traffic^,  to  buying  and  selling,  or  tne 
interchange  of  commodities,  anddonot  admit  that  it  compre- 
hends  navigation.  This  would  restrict  a  general  term,  apphcable" 
to  many  objects,  to  one  of  iTsljlgiiificationtj.  Commerce,  undoy5l- 
edly,  is  traffic,  but  it  is  something  more:  it  is  intercourse.  It  de- 
scribes the  commercial  intercourse  between  nations,  and  parts 
of  nations,  in  all  its  branches,  and  is  regulated  by  prescribing 
rules  for  carrj-ing  on  that  intercourse.  The  mind  can  scarcely 
conceive  a  system  for  regulating  commerce  between  nations, 
which  shall  excllide  all  laws  concerning  navigation,  which  shall 
be  silent  on  the  admission  of  the  vessels  of  the  one  nation  into 
ports  of  the  other,  and  be  confined  to  prescribing  rules  for  the 
conduct  of  individuals,  in  the  actual  emplo\Tnent  of  buying  and 
selling,  or  of  barter. 

If  commerce  does  not  include  navigation,  the  government  of 
the  Union  has  no  direct  power  over  that  subject,  and  can  make 
no  law  prescribing  what  shall  constitute  American  vessels,  or 
requiring  that  they  shall  be  navigated  by  American  seamen.  Yet 
this  power  has  been  exercised  from  the  commencement  of  the  gov- 
ernment, has  been  exercised  with  the  consent  of  all,  and  has  been 
understood  by  all  to  be  a  commercial  regulation.  All  America 
understands,  and  has  uniformly  understood,    the    word  "com- 


870     commerce:   decisions  before  close  of  civil  war. 

merce,"  to  comprehend  navigation.     It  was  so  understood,  and 

must  have  been  so  understood,  when  the  Constitution  was  framed. 
The  power  over  eommeix£_ilieljjjLUttg  myig^itiffti;  w;i!n  nn.c_j)f  ttie 


primary  objectsfor  which  the  people  of  America  adopted  their 
gnvprnrnpnt,    Rnd^  m^ist    hn.vp   bppn    fontcmplated    in    formTng]jt^ 

The  Convention  must  have  used  the  word  in  that  sense ,~C!^cause 
all  have  understood  it  in  that  sense;  and  the  attempt  to  restrict 
it  comes  too  late. 

If  the  opinion  that  "commerce,"  as  the  word  is  used  in  the 
Constitution,   comprehends  navigation  also,  requires  any  addi- 
<nonal  confirmation,   that  additional  confirmation  is,  we  think, 
"furnished  by  the  words  of  the  instrument  Jtself. 

It  is  rule  of  construction,  acknowledged  by  all,  that  the  ej?- 
ceptions  frorn.^'^  power  m:irk  its  ovtcnt;  for  it  woulcj^  be  absurd, 
as  well  as  useless,  to  except  from  a  granted  power,  xhat  which 
■^vas  not  granted  —  that  which  the  words  of  the  grant  could  not 
comprehend.     If,  then,  there  jixf  '"  the  Constitution  plain  ex=- 
ceptions  from  the  p^^^ypr  nvpr  rriivigation,  i^lain  inhibitions  tojjic^ 
exercise  of  that  power  in  m,  pnrti(-ular\vay.  it  is  a  proof  that  those 
who__made   th"fif>   eyeptions,    ;iiid   prescribed   these   inhitjiiion^ 
understood  the  power  to  which  they  applied  as  being  tirante^ 
^  '^he^th  section  of  the  1st  article  declares,  that     no  preference 
shall  be  given,  by  any  regulation  of  commerce  or  revenue,  to  the 
ports  of  one  State  over  those  of  another."    This  clause  cannot  be 
understood  as  applicable  to  those  laws  only  which  are  passed  for 
the  purposes  of  revenue,  because  it  is  expressly  appUed  to  com- 
mercial regulations;  and  the  most  obvious  preference  which  can 
be  given  to  one  port  over  another,  in  regulating  commerce,  re- 
lates to  navigation.    But  the  subsequent  part  of  the  sentence  is 
still  more  explicit.    It  is,  "nor  shall  vessels  bound  to  or  from  one 
State,  be  obhged  to  enter,  clear,  or  pay  duties,  in  another."    These 
words  have  a  direct  reference  to  navigation. 

The  universally  acknowledged  power  of  the  government  to 
impose  embargoes,  must  also  be  considered  as  sho>i^ing,  that  all 
America  is  united  in  that  construction  which  comprehends  naviga- 
tion in  the  word  commerce.  Gentlemen  have  said,  in  argument, 
that  this  is  a  branch  of  the  war-making  power,  and  that  an  em- 
bargo is  an  instrument  of  war,  not  a  regulation«.Qf_trade. 

That  it  may  be,  and  often  is,  used  as  an  instrumeirr"T»C^ar 
cannot  be  denied.  An  embargo  may  be  imposed  for  the  purpose 
of  facilitating  the  equipment  or  manning  of  a  fleet,  or  for  the 
purpose  of  concealing  the  progress  of  an  expedition  preparing  to 


GIBBONS   V.   OGDEN.  871 

sail  from  a  particular  port.  In  these,  and  in  similar  cases,  it  is  a 
military  instrument,  and  partakes  of  the  nature  of  war.  But  all 
embargoes  are  not  of  this  description.  They  are  sometimes  re- 
sorted to  without  a  view  to  war,  and  with  a  single  view  to  com- 
merce. In  such  case,  an  embargo  is  no  more  a  war  measure,  than 
a  merchantman  is  a  ship  of  war,  because  both  are  vessels  which 
navigate  the  ocean  with  sails  and  seamen. 

When  Congress  imposed  that  embargo  which,  for  a  time,  en- 
gaged the  attention  of  every  man  in  the  United  States,  the  avowed 
object  of  the  law  was,  the  protection  of  commerce,  and  the  avoid- 
ing of  war.  By  its  friends  and  its  enemies  it  was  treated  as  a 
commercial,  not  as  a  war  measure.  The  persevering  earnestness 
and  zeal  with  wtiich  it  was  opposed,  in  a  part  of  our  country  which 
supposed  its  interests  to  be  vitally  affected  by  the  act,  cannot 
be  forgotten.  A  "want  of  acuteness  in  discovering  objections  to 
a  measure  to  which  they  felt  the  most  deep  rooted  hostility,  will 
not  be  imputed  to  those  who  were  arrayed  in  opposition  to  this. 
Yet  they  never  suspected  that  navigation  was  no  branch  of  trade, 
and  was,  therefore,  not  comprehended  in  the  power  to  regulate 
commerce.  They  did,  indeed,  contest  the  constitutionaHty  of 
the  act,  but,  on  a  principle  which  admits  the  construction  for 
which  the  appellant  contends.  They  denied  that  the  particular 
law  in  question  was  made  in  pursuance  of  the  Constitution,  not 
because  the  power  could  not  act  directly  on  vessels,  but  because 
a  perpetual  embargo  was  the  annihilation,  and  not  the  regula- 
tion of  commerce.  In  terms,  they  admitted  the  applicability  of 
the  words  used  in  the  Constitution  to  vessels;  and  that,  in  a  case 
which  produced  a  degree  and  an  extent  of  excitement,  calculated 
to  draw  forth  every  principle  on  which  legitimate  resistance  could 
be  sustained.  No  example  could  more  strongly  illustrate  the  uni- 
versal understanding  of  the  American  people  on  this  subject. 

The  word  used  in  the  Constitution,  then,  comprehends,  and 
has  been  always  understood  to  comprehend,  navigation  within 
its  meaning;  and  a  power  to  regulate  navigation,  is  as  expressly 
granted,  as  if  that  term  had  been  added  to  the  word  "commerce." 

To  what  commerce  does  this  power  extend?  The  Constitu- 
tion informs  us,  to  commerce  "with  foreign  nations,  and  among 
the  several  States,  and  with  the  Indian  tribes." 

It  has,  we  believe,  been  universally  admitted,  that  these  words 
cornpretiend  every  sbecies  of  commercial  intercourse  between  the 
United  States  and  foreign  nations.  No  sort  of  trade  can  be  car- 
ried on  between  this  country  an3  any  other,  to  which  this  power 


872     commerce:   decisions  before  close  of  civil  war. 

does  not  extend.  It  has  been  truly  said,  that  commerce,  as  the 
word  is  used  in  the  Constitution,  is  a  unit,  every  part  of  which  is 
indicated  by  the  term. 

If  this  be  the  admitted  meaning  of  the  word,  in  its  apphcation 
to  foreign  nations,  it  must  carry  the  same  meaning  throughout 
the  sentence,  and  remain  a  unit,  unless  there  be  some  plain  in- 
telligible cause  which  alters  it. 

The  subject  to  which  the  power  is  next  applied,  is  to  commerce 
"among  the  several  States."  The  word  "among"  means  inter- 
mingled with.  A  thing  which  is  among  others,  is  intermingled 
with  them.  Commerce  among  the  States,  cannot  stop  at  the 
external  boundary  line  of  each  State,  but  may  be  introduced  into 

the  interior. 

It  is  not  intended  to  say  that  these  words  comprehend  that 
commerce,  which  is  completely  internal,  which  is  carried  on  ])e- 
tween  man  and  man  in  a  State,  or  between  different  parts  of  the 
same  State,  and  which  does  not  extend  to  or  affect  other  States. 
Such  a  power  would  be  inconvenient,  and  is  certainly  unnecessary. 

Comprehensive  as  the  word  "among"  is,  it  may  very  properly 
be  restricted  to  that  commerce  which  concerns  more  States  than 
one.  The  phrase  is  not  one  which  would  probably  have  been 
selected  to  in(Ucate  the  completely  interior  traffic  of  a  State,  be- 
cause it  is  not  an  apt  phrase  for  that  purpose;  and  the  enumera- 
tion of  the  particular  classes  of  commerce  to  which  the  power  was 
to  be  extended,  would  not  have  been  made,  had  the  intention 
been  to  extend  the  power  to  every  description.  The  enumeration 
presupposes  something  not  enumerated;  and  that  something,  if 
we  regard  the  language  or  the  subject  of  the  sentence,  must  be 
the  exclusively  internal  commerce  of  a  State.  The  genius  and 
character  of  the  whole  government  seem  to  be,  that  its  action  is 
to  be  appUed  to  all  the  external  concerns  of  the  nation,  and  to 
those  internal  concerns  which  affect  the  States  generally;  but 
not  to  those  which  are  completely  within  a  particular  State,  which 
do  not  affect  other  States,  and  with  which  it  is  not  necessary  to 
interfere,  for  the  purpose  of  executing  some  of  the  general  powers 
of  the  government.  The  completelv  internal  commerce  of  a  Stale, 
then,  may  be  consider&tl  as  reserved  for  the  Statejtself^ 

But,  in  regdlUliiig  luiiiuinTTwith  i'oreignnations,  the  power 
of  Congress  does  not  stop  at  the  jurisdictional  hnes  of  the  several 
States.  It  would  be  a  very  useless  power,  if  it  could  not  pass  those 
lines.  The  commerce  of  the  United  States  with  foreign  nations, 
is  that  of  the  whole  United  States.    Every  district  has  a  right  to 


GIBBONS  V.   OGDEN.  873 

participate  in  it.  The  deep  streams  which  penetrate  our  country 
in  every  direction,  pass  through  the  interior  of  almost  every  State 
in  the  Union,  and  furnish  the  means  of  exercising  this  right.  If 
Congress  has  the  power  to  regulate  it,  that  power  must  be  exer- 
cised whenever  the  subject  exists.  If  it  exists  within  the  States, 
if  a  foreign  voyage  mav  com^^*"^^^  ^^  tprminfltp  at  n.  pTuTlN^^hin 
a  State,  then  the  power  of  Congress  may  be  exercised  within  a 
State. 

This  principle  is,  if  possible,  still  more  clear,  when  applied  to 
commerce  "among  the  several  States."  They  either  join  each 
other,  in  which  case  they  are  separated  by  a  mathematical  line, 
or  they  are  remote  from  each  other,  in  which  case  other  States 
lie  between  them.  What  is  commerce  "among"  them;  and  how 
is  it  to  be  conducted?  Can  a  trading  expedition  between  two  ad- 
joining States,  commence  and  terminate  outside  of  each?  And 
if  the  trading  intercourse  be  between  two  States  remote  from 
each  other,  must  it  not  commence  in  one,  terminate  in  the  other, 
and  probably  pass  through  a  third?  Commerce  among  the  States 
must,  of  necessity,  be  commerce  with  the  States.  In  the  regula- 
tion of  trade  with  the  Indian  tribes,  the  action  of  the  law,  espe- 
cially when  the  Constitution  was  made,  was  chiefly  within  a 
State.  The  power  of  Congress,  then,  whatever  it  may  be,  must 
be  exercised  within  the  territorial  jurisdiction  of  the  several 
States.  The  sense  of  the  nation  on  this  subject,  is  unequivocally 
manifested  by  the  provisions  made  in  the  laws  for  transporting 
goods,  by  land,  between  Baltimore  and  Providence,  between 
New  York  and  Philadelphia,  and  between  Philadelphia  and 
Baltimore. 

We  are  now  arrived  at  the  inquiry  —  ^\^lat  is  this  power? 

It  is  the  power  to  regulate;  that  is,  to  prescribe  the  ruTeT)v  which_ 
commerce  is  to  be  governed.  This  power,  like  all  others  vested 
hi  Congress,  is  complete  iri  itself,  may  be  exercised  to  its  utmost 
extent,  and  acknowledges  no  Umitations,  other  than  are  pre- 
scribed in  the  Constitution.  These  are  expressed  in  plain  terms, 
and  do  not  affect  the  questions  which  arise  in  this  case,  or  which 
have  been  discussed  at  the  bar.  If,  as  has  always  been  understood, 
the  sovereignty  of  Congress,  though  limited  to  specified  objects, 
is  plenarj^  as  to  those  objects,  the  power  over  commerce  with 
foreign  nations,  and  among  the  several  States,  is  vested  in  Con- 
gress as  absolutely  as  it  would  be  in  a  single  government,  having 
in  its  constitution  the  same  restrictions  on  the  exercise  of  the 
power  as  are  found  in  the  Constitution  of  the  United  States.    The 


874     commerce:   decisions  before  close  of  civil  wau. 

wisdom  tind  the  discretion  of  Congress,  their  identity  witli  the 
people,  and  the  influence  which  their  constituents  possess  at 
e.liictions,  are,  in  this,  as  in  many  other  instances,  as  that,  for  ex- 
ample, of  declaring  war,  the  sole  restraints  on  which  they  have 
relied,  to  secure  them  from  its  abuse.  They  are  the  restraints  on 
which  the  people  must  often  rely  solely,  in  all  representative 
governments. 

The  power  of  Congress,  then,  comprehends  navigation  ^within 
the  limits  of  every  State  in  the  Union;  .so  far  as  tha^ navigation 
may  4?e,  m  afnrmarmcrrT^onneHecl  with  **Tommerccwith  foreign 
nations,  or  am"ong~[He"  seveTaTSlates,'  or  with  the  Indian  tribes." 
If  mayrof  consequence,  pass  the  jurisdicTTonal  hne  of  New  York, 
"and  act  upon  the^^ry  waters  lu  wliicti  The~proliibition  nowHInder 
msidexat'iomrpjTtfesT"  " 

"But  it  has  been  urged  with  great  earnestness,  that,  although 
the  power  of  Congress  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  be  co-extensive  with  the  subject 
itself,  and  have  no  other  limits  than  are  prescribed  in  the  Con- 
stitution, yet  the  States  may  severally  exercise  the  same  power, 
within  their  respective  jurisdictions.  In  support  of  this  argument, 
it  is  said,  that  they  posses.sed  it  as  an  inseparable  attribute  of 
sovereignty,  before  the  formation  of  the  Constitution,  and  still 
retain  it,  except  so  far  as  they  have  surrendered,  it  by  that 
instrument;  that  this  principle  results  from  the  nature  of  the 
government,  and  is  secured  by  the  tenth  amendment;  that  an 
affirmative  grant  of  power  is  not  exclusive,  unless  in  ite  own 
nature  it  be  such  that  the  continued  exercise  of  it  by  the  former 
possessor  is  inconsistent  with  the  grant,  and  that  this  is  not  of 
that  description. 

The  appellant,  conceding  these  postulates,  except  the  last,  con- 
tends, that  full  power  to  regulate  a  particular  subject,  impUes 
the  whole  power,  and  leaves  no  residuum;  that  a  grant  of  the 
Avhole  is  incompatible  with  the  existence  of  a  right  in  another  to 
any  part  of  it. 

Both  parties  have  appealed  to  the  Constitution,  to  legislative 
acts,  and  judicial  decisions;  and  have  drawn  arguments  from  all 
these  sources,  to  support  and  illustrate  the  propositions  they  re- 
spectively maintain. 

The  grant  of  the  power  to  lay  and  collect  taxes  is,  like  the 
power  to  regulate  commerce,  made  in  general  terms,  and  has 
never  been  understood  to  interfere  with  the  exercise  of  the  same 
power  by  the  States;  and  hence  has  been  drawn  an  argument 


GIBBONS  V.    OGDEN.  875 

which  has  been  apphed  to  the  question  under  consideration.  But 
the  two  grants  are  not,  it  is  conceived,  similar  in  their  terms  or 
their  nature.  Although  many  of  the  powers  formerly  exercised 
by  the  States,  are  transferred  to  the  government  of  the  Union, 
yet  the  State  governments  remain,  and  constitute  a  most  im- 
portant part  of  our  system.  The  power  of  taxation  is  indispen- 
sable to  their  existence,  and  is  a  power  which,  in  its  own  nature, 
is  capable  of  residing  in,  and  being  exercised  by,  different  author- 
ities at  the  same  time.  We  are  accustomed  to  see  it  placed,  for 
different  purposes,  in  different  hands.  Taxation  is  the  simple 
operation  of  taking  small  portions  from  a  perpetually  accumulat- 
ing mass,  susceptible  of  almost  infinite  division;  and  a  power  in 
one  to  take  what  is  necessary  for  certain  purposes,  is  not,  in  its 
nature,  incompatible  with  a  power  in  another  to  take  what  is 
necessary  for  other  purposes.  Congress  is  authorized  to  lay  and 
collect  taxes,  &c.,  to  pay  the  debts,  and  provide  for  the  common 
defence  and  general  welfare  of  the  United  States.  This  does  not 
interfere  with  the  power  of  the  States  to  tax  for  the  support  of 
their  own  governments;  nor  is  the  exercise  of  that  power  by  the 
States,  an  exercise  of  any  portion  of  the  power  that  is  granted  to 
the  United  States.  In  imposing  taxes  for  State  purposes,  they 
are  not  doing  what  Congress  is  empowered  to  do.  Congress  is 
not  empowered  to  tax  for  those  purposes  which  are  within  the 
exclusive  province  of  the  States.  When,  then,  each  government 
exercises  the  power  of  taxation,  neither  is  cxercismg  thcpower"  of 
tITeothcr.  But,  when  a  State  proceeds  to  regulate  commerce 
with  foreign  nations,  or  among  the  several  States,  it  is  exercising 
the  very  power  that  is  granted  to  Congress,  and  is  doing  the  very 
thing  which  Congress  is  authorized  to  do.  There  is  no  analogy, 
then,  between  the  pQwer_of  taxation  and~lhe  power  of  regulating 
commerce. 

In  discussing  the  question,  whether  this  power  is  still  in  the 
States,  in  the  case  under  consideration,  we  may  dismiss  from  it 
the  inquiry,  whether  it  is  surrendered  by  the  mere  grant  to  Con- 
gress, or  is  retained  until  Congress  shall  exercise  the  power.  We 
may  dismiss  that  inquiry,  because  it  has  been  exercised,  and  the 
regulations  which  Congress  deemed  it  proper  to  make,  are  now 
in  full  operation.  The  sole  question  is,  can  a  State  regulate  com- 
merce with  foreign  nations  and  among  the  States,  while  Congress 
fs  regulating  it?" • " 

The  counsel  Tor  the  respondent  answer  this  question  in  the 
affirmative,  and  rely  very  much  on  the  restrictions  in  the  10th 


87G     commerce:   decisions  before  close  of  crv'iL  war. 

section,  as  supporting  their  opinion.  They  say,  very  truly,  that 
limitations  of  a  power,  funiish  a  strong  argument  in  favor  of  the 
existence  of  that  power,  and  that  the  section  which  j)rohiljits 
the  States  from  laying  duties  on  imports  or  exports,  proves  that 
this  power  might  have  been  exercised,  had  it  not  been  expressly 
forbidden;  and,  consequently,  that  any  other  commercial  regula- 
tion, not  expressly  forbidden,  to  which  the  original  power  of  the 
State  was  competent,  may  still  be  made. 

That  this  restriction  shows  the  opinion  of  the  Convepti'^ni  t^T^t 
a  State  might  impose  duties  on  exports  and  imports,  iL-tuat 
expressly  for Vudden,  will  be  conceded;  l)ut  that  it  follows  as  a 
coii8t''*t^nce,  Irom  this  concession,  that  a  iState  may  regulate 
r^nimerco  with  foreign  nations  and^gmonglTie  States,  cannot  be 
admitted- 

We  must  first  determine  whether  the  act  of  laying  "duties  or 
imposts  on  imports  or  exports,"  is  considered  in  the  Constitu- 
tion as  a  branch  of  the  taxing  power,  or  of  the  power  to  regulate 

commerce.        W^    \h\,^\.'     ^     vary    r.lnQr      flint     it     is    ppnciJoroM     >^,<^    ^ 

brjiiich  of  the  taxing  power.  It  is  so  treated  in  the  first  clause  of 
the  8th  section:  "Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises;"  and,  before  commerce  is 
mentioned,  the  rule  by  which  the  exercise  of  this  power  must  be 
governed,  is  declared.  It  is,  that  all  duties,  imposts,  and  excises, 
shall  be  uniform.  In  a  separate  clause  of  the  enumeration,  the 
power  to  regulate  commerce  is  given,  as  being  entirely  distinct 
from  the  right  to  levy  taxes  and  imposts,  and  as  being  a  new 
power,  not  before  conferred.  The  Con.stitution,  then,  considers 
these  powers  as  substantive,  and  distinct  from  each  other;  and 
so  places  them  in  the  enumeration  it  contains.  The  power  of 
imposing  duties  on  imports  is  classed  with  the  power  to  le\'y 
taxes,  and  that  seems  to  be  its  natural  place.  But  the  power  to 
levy  taxes  could  never  be  considered  as  abridging  the  right  of 
the  States  on  that  subject;  and  they  might,  consequenth",  have 
exercised  it  by  levying  duties  on  imports  or  exports,  had  the  Con- 
stitution contained  no  prohibition  on  this  subject.  This  pro- 
hibition, then,  is  an  exception  from  the  acknowledged  power  of 
the  States  to  le\->'  taxes,  not  from  the  questionable  power  to 
regulate  commerce. 

"A  duty  of  tonnage"  is  as  much  a  tax,  as  a  duty  on  imports 
or  exports;  and  the  reason  which  induced  the  prohibition  of  those 
taxes,  extends  to  this  also.  This  tax  may  be  imposed  by  a  State, 
with  the  consent  of  Congress;  and  it  may  be  admitted,  that  Con- 


GIBBONS   V.   OGDEX.  877 

gress  cannot  give  a  right  to  a  State,  in  virtue  of  its  ow-n  powers. 
But  a  duty  of  tonnage  being  part  of  the  power  of  imposing  taxes, 
its  prohibition  may  certamly  be  made  to  depend  on  Congress, 
^\-ithout  afifording  any  implication  respecting  a  power  to  regulate 
commerce.  It  is  true,  that  duties  may  often  be,  and  in  fact  often 
are,  imposed  on  tonnage,  -nith  a  view  to  the  regulation  of  com- 
merce; but  they  maj'  be  also  imposed  with  a  \'iew  to  revenue; 
and  it  was,  therefore,  a  prudent  precaution,  to  prohibit  the  States 
from  exercising  this  power.  The  idea  that  the  same  measure 
might,  according  to  circumstances,  be  arranged  with  different 
classes  of  power,  was  no  novelty  to  the  framers  of  our  Constitu- 
tion. Those  illustrious  statesmen  and  patriots  had  been,  many  of 
them,  deeply  engaged  in  the  discussions  which  preceded  the  war 
of  our  revolution,  and  all  of  them  were  well  read  in  those  discus- 
sions. The  right  to  regulate  commerce,  even  by  the  imposition 
of  duties,  was  not  controverted;  but  the  right  to  impose  a  duty 
for  the  purpose  of  revenue,  produced  a  war  as  important,  perhaps, 
in  its  consequences  to-  the  human  race,  as  any  the  world  has  ever 
witnessed. 

These  restrictions,  then,  are  on  the  taxing  power,  not  on  that 
to  regulate  commerce;  and  presuppose  the  existence  of  that  which 
the}'  restrain,  not  of  that  which  the}'-  do  not  purport  to  restrain. 

But,  the  inspection  laws  are  said  to  be  regulations  of  com- 
merce, and  are  certainly  recognized  in  the  Constitution,  as  being 
passed  in  the  exercise  of  a  power  remaining  with  the  States. 

That  inspection  laws  may  have  a  remote  and  considerable  in- 
fluence on  commerce,  will  not  be  denied;  but  that  a  power  to 
regulate  commerce  is  the  source  from  which  the  right  to  pass 
them  is  derived,  cannot  be  admitted.  The  object  of  inspection 
laws,  is  to  improve  the  quality  of  articles  produced  b}'  the  labor 
of  a  country;  to  fit  them  for  exportation;  or,  it  ma}'  be,  for  domestic 
use.  They  act  upon  the  subject  before  it  becomes  an  article  of 
foreign  commerce,  or  of  commerce  among  the  States,  and  prepare 
it  for  that  purpose.  They  form  a  portion  of  that  immense  mass 
of  legislation,  which  embraces  ever}'thing  •within  the  territory  of 
a  State,  not  surrendered  to  the  general  government :  all  which  can 
be  most  advantageously  exercised  by  the  States  themselves.  In- 
spection laws,  quarantine  laws,  health  laws  of  every  description, 
as  well  as  laws  for  regulating  the  internal  commerce  of  a  State, 
and  those  which  respect  turnpike  roads,  ferries,  &c.,  are  com- 
ponent parts  of  this  mass. 

No  direct  general  power  over  these  objects  is  granted  to  Con- 


878     commerce:    decisions  before  close  of  civil  war. 

gress;  and,  consequently,  they  remain  subject  to  State  legislation. 
If  the  legislative  power  of  the  Union  can  reach  them,  it  must  he 
for  national  purposes;  it  must  be  where  the  power  is  expressly 
given  for  a  special  purpose,  or  is  clearly  incidental  to  some  power 
which  is  expressly  given.  It  is  obvious,  that  the  government  of 
the  Union,  in  the  exercise  of  its  express  powers,  that,  for  example, 
of  regulating  commerce  with  foreign  nations  and  among  the  States, 
may  use  means  that  may  also  be  employed  by  a  State,  in  the  ex- 
ercise of  its  acknowledged  powers;  that,  for  example,  of  regulating 
commerce  within  the  State.  If  Congress  license  vessels  to  sail 
from  one  port  to  another,  in  the  same  State,  the  act  is  supposed 
to  be,  necessarily,  incidental  to  the  power  expressly  granted  to 
Congress,  and  implies  no  claim  of  a  direct  power  to  regulate  the 
purely  internal  commerce  of  a  State,  or  to  act  directly  on  its 
system  of  police.  So,  if  a  State,  in  passing  laws  on  subjects  ac- 
knowledged to  be  within  its  control,  and  with  a  view  to  those 
subjects,  shall  adopt  a  measure  of  the  same  character  with  one 
which  Congress  may  adopt,  it  does  not  derive  its  authority  from 
the  particular  power  which  has  been  granted,  but  from  some  other, 
which  remains  with  the  State,  and  may  be  executed  by  the  same 
means.  All  experience  shows,  that  the  same  measures,  or  meas- 
ures scarcely  distinguishable  from  each  other,  may  flow  from  dis- 
tinct powers;  but  this  does  not  prove  that  the  powers  themselves 
are  identical.  Although  the  means  used  in  their  execution  may 
sometimes  approach  each  other  so  nearly  as  to  be  confounded, 
there  are  other  situations  in  which  they  are  sufficiently  distinct 
to  establish  their  individuality. 

In  our  complex  system,  presenting  the  rare  and  difficult  scheme 
of  one  general  government,  whose  action  extends  over  the  whole, 
but  which  possesses  only  certain  enumerated  powers;  and  of 
numerous  State  goverrmients,  which  retain  and  exercise  all  powers 
not  delegated  to  the  Union,  contests  respecting  power  must  arise. 
Were  it  even  otherwise,  the  measures  taken  by  the  respective 
governments  to  execute  their  acknowledged  powers,  would  often 
be  of  the  same  description,  and  might,  sometimes,  interfere. 
This,  however,  does  not  prove  that  the  one  is  exercising,  or  has  a 
right  to  exercise,  the  powers  of  the  other. 

The  acts  of  Congress,  passed  in  1796  and  1799,  empowering  and 
directing  the  officers  of  the  general  government  to  conform  to, 
and  assist  in  the  execution  of  the  quarantine  and  health  laws  of  a 
State,  proceed,  it  is  said,  upon  the  idea  that  these  laws  are  con- 
stitutional.    It  is  undoubtedly  true,  that  they  do  proceed  upon 


GIBBONS   V.    OGDEN.  879 

that  idea;  and  the  constitutionahty  of  such  laws  has  never,  so 
far  as  we  are  informed,  been  denied.  But  they  do  not  imply  an 
acknowledgment  that  a  State  may  rightfully  regulate  commerce 
with  foreign  nations,  or  among  the  States;  for  they  do  not  imply 
that  such  laws  are  an  exercise  of  that  power,  or  enacted  with  a 
view  to  it.  On  the  contrary,  they  are  treated  as  quarantine  and 
health  laws,  are  so  denominated  in  the  acts  of  Congress,  and  are 
considered  as  flowing  from  the  acknowledged  power  of  a  State, 
to  provide  for  the  health  of  its  citizens.  But,  as  it  was  apparent 
that  some  of  the  provisions  made  for  this  purpose,  and  in  virtue 
of  this  power,  might  interfere  wath,  and  be  affected  by  the  laws 
of  the  United  States,  made  for  the  regulation  of  commerce,  Con- 
gress, in  that  spirit  of  harmony  and  conciliation,  which  ought 
always  to  characterize  the  conduct  of  governments  standing  in 
the  relation  which  that  of  the  Union  and  those  of  the  States  bear 
to  each  other,  has  directed  its  officers  to  aid  in  the  execution  of 
these  laws;  and  has,  in  some  measure,  adapted  its  own  legislation 
to  this  object,  by  making  provisions  in  aid  of  those  of  the  States. 
But,  in  making  these  provisions,  the  opinion  is  unequivocally 
manifested,  that  Congress  may  control  the  State  laws,  so  far  as, it 
may  be  necessary  to  control  them,  for  the  regulation  of  commerce. 
The  act  passed  in  1803,  prohibiting  the  importation  of  slaves 
into  any  State  which  shall  itself  prohibit  their  importation,  im- 
plies, it  is  said,  an  admission  that  the  States  possessed  the  power 
to  exclude  or  admit  them;  from  which  it  is  inferred,  that  they 
possess  the  same  power  with  respect  to  other  articles. 

If  this  inference  were  correct;  if  this  power  was  exercised,  not 
under  any  particular  clause  in  the  Constitution,  but  in  virtue  of 
a  general  right  over  the  subject  of  commerce,  to  exist  as  long  as 
the  Constitution  itself,  it  might  now  be  exercised.  Any  State 
might  now  import  African  slaves  into  its  own  territory.  But  it  is 
obvious,  that  the  power  of  the  States  over  this  subject,  pre- 
vious to  the  year  1808,  constitutes  an  exception  to  the  power 
of  Congress  to  regulate  commerce,  and  the  exception  is  expressed 
in  such  words,  as  to  manifest  clearly  the  intention  to  continue 
the  pre-existing  right  of  the  States  to  admit  or  exclude,  for  a 
limited  period.  The  words  are,  "the  migration  or  importation 
of  such  persons  as  any  of  the  States,  now  existing,  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  year  1808."  The  whole  object  of  the  exception  is,  to  pre- 
serve the  power  to  those  States  which  might  be  disposed  to  exer- 
cise it;  and  its  language  seems  to  the  court  to  convey  this  idea 


880     commerce:   decisions  before  close  of  civil  war. 

unequivocally.  The  possession  of  this  particular  power,  then, 
during  the  time  limited  in  the  Constitution,  cannot  be  admitted 
to  prove  the  possession  of  any  other  similar  power. 

It  has  been  said,  that  the  act  of  August  7,  1789,  acknowledges 
a  concurrent  power  in  the  States  to  regulate  the  conduct  of  pilots, 
and  hence  is  inferred  an  admission  of  their  concurrent  right  with 
Congress  to  regulate  commerce  with  foreign  nations,  and  amongst 
the  States.  But  this  inference  is  not,  we  think,  justified  by  the 
fact. 

Although  Congress  cannot  enable  a  State  to  legislate.  Con- 
gress may  adopt  the  provisions  of  a  State  on  any  subject.  When 
the  government  of  the  Union  was  brought  into  existence,  it  found 
a  system  for  the  regulation  of  its  pilots  in  full  force  in  every  State. 
The  act  which  has  been  mentioned,  adopts  this  system,  and  gives 
it  the  same  validity  as  if  its  provisions  had  been  specially  made 
by  Congress.  But  the  act,  it  may  he  said,  is  prospective  also, 
and  the  adoption  of  laws  to  be  made  in  future,  presupposes  the 
right  in  the  maker  to  legislate  on  the  subject. 

The  act  unquestionably  manifests  an  intention  to  leave  this 
subject  entirely  to  the  States,  until  Congress  should  think  proper 
to  jnterposc;  but  the  very  enactment  of  such  a  law  indicates  an 
opinion  that  it  was  necessary;  that  the  existing  system  would  not 
be  applicable  to  the  new  state  of  things,  unless  expressly  applied 
to  it  by  Congress.  But  this  section  is  confined  to  pilots  within 
the  "bays,  inlets,  rivers,  harbors,  and  ports  of  the  United  States," 
which  are,  of  course,  in  whole  or  in  part,  also  within  the  limits  of 
some  particular  State.  The  acknowledged  power  of  a  State  to 
regulate  its  police,  its  domestic  trade,  and  to  govern  its  own 
citizens,  may  enable  it  to  legislate  on  this  subject,  to  a  considerable 
extent;  and  the  adoption  of  its  system  by  Congress,  and  the  ap- 
plication of  it  to  the  whole  subject  of  commerce,  does  not  seem  to 
the  court  to  imply  a  right  in  the  States  so  to  apply  it  of  their  own 
authority.  But  the  adoption  of  the  State  system  being  temporary, 
being  only  "until  further  legislative  provision  shall  be  made  by 
Congress,"  shows,  conclusively,  an  opinion  that  Congress  could 
control  the  whole  subject,  and  might  adopt  the  system  of  the 
States,  or  provide  one  of  its  own. 

A  State,  it  is  said,  or  even  a  private  citizen,  may  construct  light- 
houses. But  gentlemen  must  be  aware,  that  if  this  proves  a  power 
in  a  State  to  regulate  commerce,  it  proves  that  the  same  power  is 
in  the  citizen.  States,  or  individuals  who  own  lands,  may,  if  not 
forbidden  by  law,  erect  on  those  lands  what  buildings  they  please ; 


GIBBONS   V.    OGDEN.  881 

but  this  power  is  entirely  distinct  from  that  of  regulating  com- 
merce?, and  may,  we  presume,  be  restrained,  if  exercised  so  as  to 
produce  a  public  mischief. 

These  acts  were  cited  at  the  bar  for  the  purpose  of  sho-tv-ing  an 
opmion^ in  Congress,  that  the  States  possess,  concurrently  uHfj 
thejeglilature  ot  the  Union,  the  power  to  regulate  commerce  ^Tith 
forejgn_nations  ana  among  the  States.  Upon  reviewing  them, 
WTjhmFthey  do  not  establish  the  propositionlh^Twerrmtended 
*o  prowT'ihey  snow  me  opinion,  that  the  States  retain  powers 
enabling  them  to  pass  the  laws  to  which  allusion  has  been  made, 
not  that  those  laws  proceed  from  the  particular  power  which  has 
been  delegated  to  Congress. 

It  has  been  contended  by  the  counsel  for  the  appellant,  that, 
as  the  word  "to  regulate"  implies  in  its  nature,  full  power  over 
the  thing  to  be  regulated,  it  excludes,  necessarily,  the  action  of 
all  others  that  would  perform  the  same  operation  on  the  same 
thing.  That  regulation  is  designed  for  the  entire  result,  apply- 
ing to  those  parts  which  remain  as  they  were,  as  well  as  to  those 
which  are  altered.  It  produces  a  uniform  whole,  which  is  as  much 
disturbed  and  deranged  by  changing  what  the  regulating  power 
designs  to  leave  untouched,  as  that  on  which  it  has  operated. 

There  is  great  force  in  this  argument,  and  the  court  is  not  satis- 
fied that  it  has  been  refuted. 

Since,  however,  in  exercising  the  power  of  regulating  their  own 
purely  internal  affairs,  whether  of  trading  or  police,  the  States 
may  sometimes  enact  laws,  the  validity  of  which  depends  on  their 
interfering  with,  and  being  contrary  to,  an  act  of  Congress  passed 
in  pursuance  of  the  Constitution,  the  court  will  enter  upon  the 
inquiry,  whether  the  laws  of  New  York,  as  expounded  by  the 
highest  tribunal  of  that  State,  have,  in  their  application  to  this 
ease,  come  into  collision  with  an  act  of  Congress,  and  deprived  a 
citizen  of  a  right  to  which  that  act  entitles  him.  Should  this  col- 
lision exist,  it  will  be  immaterial  whether  those  laws  were  passed 
in  virtue  of  a  concurrent  power  "to  regulate  commerce  with 
foreign  nations  and  among  the  several  States,"  or,  in  virtue  of  a 
power  to  regulate  their  domestic  trade  and  police.  In  one  case 
and  the  other,  the  acts  of  New  York  must  yield  to  the  law  of 
Congress;  and  the  decision  sustaining  the  privilege  they  confer, 
against  a  right  given  by  a  law  of  the  Union,  must  be  erroneous. 

This  opinion  has  been  frequently  expressed  in  this  court,  and 
is  founded,  as  well  on  the  nature  of  the  government  as  on  the 
words  of  the  Constitution.     In  argument,  however,  it  has  been 


882     commerce:   decisions  before  close  of  civil  war. 

contended,  that  if  a  law  passed  by  a  State,  in  the  exercise  of  its 
acknowledged  sovereignty,  comes  into  conflict  with  a  law  passed 
by  Congress  in  pursuance  of  the  Constitution,  they  affect  the 
subject,  and  each  other,  like  equal  opposing  powers. 

But  the  framers  of  our  Constitution  foresaw  this  state  of  things, 
and  provided  for  it,  by  declaring  the  supremacy  not  only  of  itself, 
])ut  of  the  laws  made  in  pursuance  of  it.  The  nullity  of  any  act, 
inconsistent  with  the  Constitution,  is  produced  by  the  declara- 
tion, that  the  (Constitution  is  the  supreme  law.  The  appropriate 
application  of  that  part  of  the  clause  which  confers  the  same  su- 
premacy on  laws  and  treaties,  is  to  such  acts  of  the  State  legisla- 
tures as  do  not  transcend  their  powers,  but,  though  enacted  in  the 
execution  of  acknowledged  State  powers,  interfere  with,  or  are 
contrary  to  the  laws  of  Congress,  made  in  pursuance  of  the  Con- 
stitution, or  some  treaty  made  under  the  authority  of  the  United 
States.  In  every  such  case,  the  act  of  Congress,  or  the  treaty,  is 
supreme;  and  the  law  of  the  State,  though  enacted  in  the  exer- 
cise of  powers  not  controverted,  must  yield  to  it. 

In  pursuing  this  incjuiry  at  the  bar,  it  has  been  said,  that  the 
Constitution  does  not  confer  the  right  of  intercourse  between 
State  and  State.  That  right  derives  its  source  from  those  laws 
whose  authority  is  acknowledged  by  civilized  man  throughout 
the  world.  This  is  true.  The  Constitution  found  it  an  existing 
right,  and  gave  to  Congress  the  power  to  regulate  it.  In  the  ex- 
ercise of  this  power,  Congress  has  passed  "an  act  for  enrolling  or 
licensing  ships  or  vessels  to  be  employed  in  the  coasting  trade  and 
fisheries,  and  for  regulating  the  same."  The  counsel  for  the  re- 
spondent contend,  that  this  act  does  not  give  the  right  to  sail 
from  port  to  port,  but  confines  itself  to  regulating  a  pre-existing 
right,  so  far  only  as  to  confer  certain  privileges  on  enrolled  and 
licensed  vessels  in  its  exercise. 

It  will  at  once  occur,  that,  when  a  legislature  attaches  certain 
privileges  and  exemptions  to  the  exercise  of  a  right  over  which 
its  control  is  absolute,  the  law  must  imply  a  power  to  exercise  the 
right.  ...  To  the  court  it  seems  very  clear,  that  the  whole  act 
on  the  subject  of  the  coasting  trade,  according  to  those  principles 
which  govern  the  construction  of  statutes,  implies,  unequivocally, 
an  authority  to  licensed  vessels  to  carry  on  the  coasting  trade. 

But  we  will  proceed  briefly  to  notice  those  sections  which  bear 
more  directly  on  the  subject. 

The  first  section  declares,  that  vessels  enrolled  by  virtue  of  a 
previous  law,  and  certain  other  vessels,  enrolled  as  described  in 


GIBBONS  I'.    OGDEN.  883 

that  act,  and  having  a  Hcense  in  force,  as  is  by  the  act  required, 
"and  no  others,  shall  be  deemed  ships  or  vessels  of  the  United 
States,  entitled  to  the  privileges  of  ships  or  vessels  employed  in 
the  coasting  trade." 

This  section  seems  to  the  court  to  contain  a  positive  enactment 
that  the  vessels  it  describes  shall  be  entitled  to  the  privileges  of 
ships  or  vessels  employed  in  the  coasting  trade.  .  .  . 

The  fourth  section  directs  the  proper  officer  to  grant  to  a  vessel 
qualified  to  receive  it,  "a  license  for  carrying  on  the  coasting 
trade;"  and  prescribes  its  form.  After  reciting  the  compliance  of 
the  applicant  with  the  previous  requisites  of  the  law,  the  opera- 
tive words  of  the  instrument  are,  "license  is  hereby  granted  for 
the  said  steamboat,  Bellona,  to  be  employed  in  carrying  on  the 
coasting  trade  for  one  year  from  the  date  hereof,  and  no  longer." 

These  are  not  the  words  of  the  officer;  they  are  the  words  of 
the  legislature;  and  convey  as  explicitly  the  authority  the  act 
intended  to  give,  and  operate  as  effectually,  as  if  they  had  been 
inserted  in  any  other  part  of  the  act,  than  in  the  license 
itself. 

The  word  "license"  means  permission,  or  authority;  and  a 
license  to  do  any  particular  thing,  is  a  permission  or  authority 
to  do  that  thing;  and  if  granted  by  a  person  having  power  to 
grant  it,  transfers  to  the  grantee  the  right  to  do  whatever  it  pur- 
ports to  authorize.  It  certainly  transfers  to  him  all  the  right 
which  the  grantor  can  transfer,  to  do  what  is  within  the  terms  of 
the  license.  .  .  . 

But,  if  the  license  be  a  permit  to  carry  on  the  coasting  trade, 
the  respondent  denies  that  these  boats  were  engaged  in  that 
trade,  or  that  the  decree  under  consideration  has  restrained  them 
from  prosecuting  it.  The  boats  of  the  appellant  were,  we  are 
told,  employed  in  the  transportation  of  passengers;  and  this  is  no 
part  of  that  commerce  which  Congress  may  regulate. 

If,  as  our  whole  course  of  legislation  on  this  subject  shows,  the 
pMDwer  of  Congress  has  been  universally  understood  in  America, 
to  comprehend  navigation,  it  is  a  very  persuasive,  if  not  a  con- 
clusive argument,  to  prove  that  the  construction  is  correct;  and, 
if  it  be  correct,  no  clear  distinction  is  perceived  between  the  power 
to  regulate  vessels  employed  in  transporting  men  for  hire,  and 
property  for  hire.  The  subject  is  transferred  to  Congress,  and 
no  exception  to  the  grant  can  be  admitted,  which  is  not  proved 
by  the  words  or  the  nature  of  the  thing.  A  coasting  vessel  em- 
ployed in  the  transportation  of  passengers,  is  as  much  a  portion 


884     commerce:   decisions  before  close  of  civil  war. 

of  tlie  American  marine,  as  one  employed  in  the  transportation 
of  a  cargo;  and  no  reason  is  perceived  why  such  vessel  should  be 
withdrawn  from  the  regulating  power  of  that  government,  wliich 
has  been  thought  best  fitted  for  the  purpose  generally.  The  pro- 
visions of  the  law  respecting  native  seamen,  and  respecting  owner- 
ship, are  as  applicable  to  vessels  carrying  men,  as  to  vessels 
carrying  manufactures;  and  no  reason  is  perceived  why  the  power 
over  the  subject  should  not  be  placed  in  the  same  hands.  The 
argument  urged  at  the  bar,  rests  on  the  foundation,  that  the  power 
of  Congress  does  not  extend  to  navigation,  as  a  branch  of  con- 
merce,  and  can  only  be  applied  to  that  subject  incidentally  and 
occasionally.  But  if  that  foundation  be  removed,  we  must  show 
some  plain,  intelligible  distinction,  supported  Ijy  the  Constitu- 
tion, or  by  reason,  for  discriminating  between  the  power  of  Con- 
gress over  vessels  employed  in  navigating  the  same  seas.  We  can 
perceive  no  such  distinction. 

If  we  refer  to  the  Constitution,  the  inference  to  be  drawn  from 
it  is  rather  against  the  distinction.  The  section  which  restrains 
Congress  from  prohibiting  the  migration  or  importation  of  such 
persons  as  any  of  the  States  may  think  proper  to  admit,  until 
the  year  1808,  has  always  been  considered  as  an  exception  from 
the  power  to  regulate  commerce,  and  certainly  seems  to  class 
migration  with  importation.  Migration  applies  as  appropriately 
to  voluntary,  as  importation  does  to  involuntary,  arrivals;  and, 
so  far  as  an  exception  from  a  power  proves  its  existence,  this  sec- 
tion proves  that  the  power  to  regulate  commerce  applies  equally 
to  the  regulation  of  vessels  employed  in  transporting  men,  who 
pass  from  place  to  place  voluntarily,  and  to  those  who  pass 
involuntarily. 

If  the  power  reside  in  Congress,  as  a  portion  of  the  general 
grant  to  regulate  commerce,  then  acts  applying  that  power  to 
vessels  generally,  must  be  construed  as  comprehending  all  vessels. 
If  none  appear  to  be  excluded  by  the  language  of  the  act,  none 
can  be  excluded  by  construction.  Vessels  have  always  been  em- 
ployed to  a  greater  or  less  extent  in  the  transportation  of  pas- 
sengers, and  have  never  been  supposed  to  be,  on  that  account, 
withdrawn  from  the  control  or  protection  of  Congress.  Packets 
which  ply  along  the  coast,  as  well  as  those  which  make  voyages 
between  Europe  and  America,  consider  the  transportation  of 
passengers  as  an  important  part  of  their  business.  Yet  it  has 
never  been  suspected  that  the  general  laws  of  navigation  did  not 
apply  to  them. 


GIBBONS  V.   OGDEN.  885 

The  dut}'-  act,  §§23  and  46,  contains  provisions  respecting  pas- 
sengers, and  shows,  that  vessels  which  transport  them,  have  the 
same  rights,  and  must  perform  the  same  duties,  with  other  vessels. 
They  are  governed  by  the  general  laws  of  navigation. 

In  the  progress  of  things,  this  seems  to  have  grown  into  a  par- 
ticular emplo^-ment,  and  to  have  attracted  the  particular  atten- 
tion of  government.  Congress  was  no  longer  satisfied  with 
comprehending  vessels  engaged  specially  in  this  business,  within 
those  provisions  which  were  intended  for  vessels  generally;  and, 
on  March  2,  1819,  passed  "an  act  regulating  passenger  ships  and 
vessels."  This  wise  and  humane  law  provides  for  the  safety  and 
comfort  of  passengers,  and  for  the  communication  of  everything 
concerning  them  which  may  interest  the  goverimient,  to  the  De- 
partment of  State,  but  makes  no  provision  concerning  the  entry 
of  the  vessel,  or  her  conduct  in  the  waters  of  the  United  States. 
Tliis,  we  think,  shows  conclusively  the  sense  of  Congress  (if,  in- 
deed, any  evidence  to  that  point  could  be  required),  that  the 
pre-existing  regulations  comprehended  passenger  ships  among 
others;  and,  in  prescribing  the  same  duties,  the  legislature  must 
have  considered  them  as  possessing  the  same  rights. 

U^Uien,  it  were  even  true,  that  the  Bellona  and  the  Stoudinger 
were  emploved  oxflnsivcly  m  tlu>  conveyance  of  passengers  be- 
t^vecn  Xe^-  York  and  New  Jersey,  it  would  not  follow  that  this 
occupation  did  not  constitute  a  part  of  the  coasting  trade  o7  the 
United  States,  and  was  not  protectedln"  the  license  annexed  to 
the  answer.  But  we  cannot  perceive  how  the  occupation  of  these 
vessels  can  be  dra^\^l  into  question,  in  the  case  before  the  court. 
The  laws  of  New  York,  which  grant  the  exclusive  privilege  set 
up  by  the  respondent,  take  no  notice  of  the  emplojonent  of  vessels, 
and  relate  only  to  the  principle  by  which  they  are  propelled.  .  .  . 
In  conformity  with  the  law,  is  the  bill  of  the  plaintiff  in  the  State 
court.  The  bill  does  not  complain  that  the  Bellona  and  the  Stou- 
dinger  carry  passengers,  but  that  they  are  moved  by  steam.  This 
hjj_h(^  Injuiy  of  which  he  complains,  and  is  the  sole  injury  againsT 
thejcontinuance  ol_\vhich  he  asks  relief.  The  bill  does  not  even 
allege,  specially,  that  those  vessels  were  employed  in  the  trans- 
portation of  passengers,  but  says,  generally,  that  they  were  em- 
ployed "in  the  transportation  of  passengers,  or  otherwise."  The 
answer  avers,  only,  that  they  were  employed  in  the  coasting  trade, 
anJ  insists  on  the  right  to  carry  on  anv  trade  authorized  by  the 
license.  No  testimony  is  taken,  and  the  wTit  of  injunction  and 
decree  restrain  these  licensed  vessels,  not  from  carrying  passen- 


880     commerce:   decisions  before  close  of  civil  war. 

gers,  but  from  being  moved  through  the  waters  of  New  York  by 
steam,  for  any  purpose  whatever. 

The  questions,  then,  wliether  the  conveyance  of  passengers  be 
a  part  of  the  coasting  trade,  and  whether  a  vessel  can  be  protected 
in  that  occupation  by  a  coa.sting  license,  are  not,  and  cannot  be, 
raised  in  this  case.  The  real  and  sole  question  seems  to  be, 
whether  a  steam  machine,  in  actual  use,  deprives  a  vessel  ufjjic 
pi-ivileges  conferred  l>y  a  license. 

In  considermg  this  question,  the  first  idea  which  presents 
itself,  is,  that  the  laws  of  C'ongre^^^  f«>r  the  rcfrnjiitinn  of  rf)mmerce, 
do  not  look  to  the  principle  1)V  which  vessels  -ire  ^^l)^;e<l^  •  .  . 

As  this  decides  the  case,  it  is  unnecessary  to  enter  in  on  an  ex- 
amination of  that  part  ot  the  Constitution  \^iiklLiriipowers  C  on- 
jrrpss_tn  promote  the  progress  of  scieiic£_and  the_useful_arts.  .  .  . 

Decxee  .   .   .    reversed:    .   .   .'_aud : — bilL^^.   .   herebu    dis- 

missed  accordingly. 


BROWN   V.   MARYLAND. 
Supreme  Court  of  the  United  States.     1827. 
[12  Wheaton,  419.)  ' 

Error  to  the  Court  of  Appeals  of  Maryland. 

Meredith,  for  plaintiffs  in  error;  and  Taney  and  Johnson, 
contra. 

Marshall,  C.  J.,  deUvered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  Court  of 
Appeals  of  Maryland,  affirming  a  judgment  of  the  City  Court 
of  Baltimore,  on  an  indictment  found  in  that  court  against  the 
plaintiffs  in  error,  for  violating  an  act  of  the  legislature  of  Mary- 
land. The  indictment  was  founded  on  the  second  section  of 
that  act,  which  is  in  these  words:  "And  be  it  enacted,  that  all 
importers  of  foreign  articles  or  commodities,  of  dry  goods,  wares, 
or  merchandise,  by  bale  or  package,  or  of  wine,  rum,  brandy, 
whiskey  and  other  distilled  spirituous  liquors,  etc.,  and  other 
persons  selling  the  same  by  wholesale,  bale  or  package,  hogshead, 
barrel,  or  tierce,  shall,  before  they  are  authorized  to  sell,  take  out 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


BRO^T^   I'.    MARYLAND.  887 

a  license,  as  by  the  original  act  is  directed,  for  which  they  shall 
pay  fifty  dollars ;  and  in  case  of  neglect  or  refusal  to  take  out  such 
license,  shall  be  subject  to  the  same  penalties  and  forfeitures  as 
are  prescribed  by  the  original  act  to  which  this  is  a  supplement." 
The  incUctment  charges  the  plaintiffs  in  error  with  having  imported 
and  sold  one  package  of  foreign  dry  goods  without  having  license 
to  do  so.  A  judgment  was  rendered  against  them  on  demurrer 
for  the  penalty  which  the  act  prescribes  for  the  offence;  and 
that  judgment  is  now  before  this  court. 

The  cause  depends  entirely  on  the  question,  whether  the  legis- 
lature of  a  State  can  constitutionally  require  the  importer  of 
foreign  articles  to  take  out  a  Hcense  from  the  State,  before  he 
shall  be  permitted  to  sell  a  bale  or  package  so  imported. 

It  has  been  truly  said,  that  the  presumption  is  in  favor  of  every 
legislative  act,  and  that  the  whole  burden  of  proof  Hes  on  him 
who  denies  its  constitutionaUty.  The  plaintiffs  in  error  take 
the  burden  upon  themselves,  and  insist  that  the  act  under  con- 
sideration is  repugnant  to  two  provisions  in  the  Constitution  of 
the  United  States. 

1.  To  that  which  declares  that  "no  State  shall,  without  the 
consent  of  Congress,  lay  any  imposts,  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws." 

2.  To  that  which  declares  that  Congress  shall  have  power  ''to 
regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes."  * 

1.  The  first  inquiry  is  into  the  extent  of  the  prohibition  upon 
States  "to  lay  any  unposts  or  duties  on  imports  or  exports." 
The  counsel  for  the  State  of  Maryland  would  confine  this  pro- 
hibition to  laws  imposing  duties  on  the  act  of  importation  or  ex- 
portation. The  counsel  for  the  plaintiffs  in  error  give  them  a 
much  wider  scope. 

In  performing  the  deUcate  and  important  duty  of  construing 
clauses  in  the  Constitution  of  our  country,  which  involve  con- 
flicting powers  of  the  government  of  the  Union,  and  of  the  respec- 
tive States,  it  is  proper  to  take  a  view  of  the  Uteral  meaning  of 
the  words  to  be  expounded,  of  their  connection  with  other  words, 
and  of  the  general  objects  to  be  accompUshed  by  the  prohibitory 
clause,  or  by  the  grant  of  power. 

What,  then,  is  the  meaning  of  the  words  "imposts,  or  duties 
on  imports  or  exports"  ? 

An  impost,  or  duty  on  imports,  is  a  custom  or  a  tax  levied 


commerce:   decisions  before  close  of  civil  war. 

on  articles  ])rought  into  a  country,  and  is  most  usually  secured 
before  the  importer  is  allowed  to  exercise  his  rights  of  ownership 
over  them,  because  evasions  of  the  law  can  be  prevented  more 
certainly  by  executing  it  while  the  articles  are  in  its  custody.  It 
would  not,  however,  be  less  an  impost  or  duty  on  the  articles,  if 
it  were  to  l)e  levied  on  them  after  they  were  landed.  The  policy 
and  consequent  practice  of  levying  or  securing  the  duty  before, 
or  on  entering  the  port,  does  not  limit  the  power  to  that  state  of 
things,  nor,  consequently,  the  prohibition,  unless  the  true  meaning 
of  the  clause  so  confines  it.  What,  then,  are  "imports"?  The 
lexicons  inform  us,  they  are  "things  imported."  If  we  appeal 
to  usage  for  the  meaning  of  the  word,  we  shall  receive  the  same 
answer.  They  are  the  articles  themselves  which  are  brought 
into  the  country.  "A  duty  on  imports,"  then,  is  not  merely 
a  duty  on  the  act  of  importation,  but  is  a  duty  on  the  thing 
imported.  It  is  not,  taken  in  its  hteral  sense,  confined  to  a  duty 
levied  while  the  article  is  entering  the  country,  but  extends  to 
a  duty  levied  after  it  has  entered  the  country.  The  succeeding 
words  of  the  sentence  which  Umit  the  prohil)ition,  show  the  extent 
in  which  it  was  understood.  The  limitation  is,  "except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws."  Now, 
the  inspection  laws,  so  far  as  they  act  upon  articles  for  exporta- 
tion, are  generally  executed  on  land,  before  the  article  is  put  on 
board  the  vessel;  so  far  as  they  act  upon  importations  they  are 
generally  executed  upon  articles  which  are  landed.  The  tax 
or  duty  of  inspection,  then,  is  a  tax  which  is  frequently,  if  not 
always  paid  for  service  performed  on  land,  wliile  the  article  is 
in  the  bosom  of  the  country.  Yet  this  tax  is  an  exception  to  the 
prohibition  on  the  States  to  lay  duties  on  imports  or  exports. 
The  exception  was  made  because  the  tax  would  otherwise  have 
been  within  the  prohibition. 

If  it  be  a  rule  of  interpretation  to  which  all  assent,  that  the 
exception  of  a  particular  thing  from  general  words,  proves  that, 
in  the  opinion  of  the  lawgiver,  the  thing  excepted  would  be  within 
the  general  clause  had  the  exception  not  been  made,  we  know 
no  reason  why  this  general  rule  should  not  be  as  applicable  to 
the  Constitution  as  to  other  instruments.  If  it  be  apphcable, 
then  this  exception  in  favor  of  duties  for  the  support  of  inspec- 
tion laws,  goes  far  in  proving  that  the  framers  of  the  Constitution 
classed  taxes  of  a  similar  character  with  those  imposed  for  the 
purposes  of  inspection,  with  duties  on  imports  and  exports,  and 
supposed  them  to  be  prohibited. 


BROWN  V.   MARYLAND.  889 

If  we  quit  this  narrow  view  of  the  subject,  and  passing  from  the 
literal  interpretation  of  the  words,  look  to  the  objects  of  the  pro- 
hibition, we  find  no  reason  for  withdrawing  the  act  under  consid- 
eration from  its  operation. 

From  the  vast  inequahty  between  the  different  States  of  ^he  con- 
federacy, as  to  commercial  advantages,  few  subjects  were  viewed 
with  deeper  interest,  or  excited  more  irritation,  than  the  manner 
in  which  the  several  States  exercised,  or  seemed  disposed  to  exer- 
cise, the  power  of  laying  duties  on  imports.    From  motives  which 
were  deemed  sufficient  by  the  statesmen  of  that  day,  the  general 
power  of  taxation,  indispensably  necessary  as  it  was,  and  jealous 
as  the  States  were  of  any  encroachment  on  it,  was  so  far  abridged 
as  to  forbid  them  to  touch  imports  or  exports,  with  the  single  ex- 
ception which  has  been  noticed.     Why  are  they  restrained  from 
imposing  these  duties?     Plainly,  because,  in  the  general  opinion, 
the  interest  of  all  would  be  best  promoted  by  placing  that  whole 
subject  under  the  control  of  Congress.     Whether  the  prohibition 
to  "lay  imposts,  or  duties  on  imports  or  exports,"  proceeded  from 
an  apprehension  that  the   power  might   be   so  exercised   as  to 
disturb  that  equality  among  the  States  which  was  generally  ad- 
vantageous, or  that  harmony  between  them  which  it  was  desir- 
able  to   preserve,   or   to   maintain   unimpaired  our   commercial 
connections  with  foreign  nations,  or  to  confer  this  source  of  revenue 
on  the  government  of  the  Union,  or  whatever  other  motive  might 
have  induced  the  prohibition,  it  is  plain,  that  the  object  would 
be  as  completely  defeated  by  a  power  to  tax  the  article  in  the 
hands  of  the  importer  the  instant  it  was  landed,  as  by  a  power 
to  tax  it  while  entering   the  port.     There  is  no  difference,  in 
effect,  between  a  power  to  prohibit  the  sale  of  an  article,  and  a 
power  to  prohibit  its  introduction  into  the  country.     The  one 
would  be  a  necessary  consequence  of  the  other.    No  goods  would 
be  imported  if  none  could  be  sold.    No  object  of  any  description 
can  be  accomphshed  by  laying  a  duty  on  importation,  which  may 
not  be  accomplished  with  equal  certainty  by  laying  a  duty  on 
the  thing  imported  in  the  hands  of  the  importer.     It  is  obvious, 
that  the  same  power  which  imposes  a  Ught  duty,  can  impose  a 
very  heavy  one,  one  which  amounts  to  a  prohibition.    Questions 
of  power,  do  not  depend  on  the  degree  to  which  it  may  be  exer- 
cised.   If  it  may  be  exercised  at  all,  it  must  be  exercised  at  the  will 
of  those  in  whose  hands  it  is  placed.    If  the  tax  may  be  levied  in 
this  form  by  a  State,  it  may  be  levied  to  an  extent  which  will 
defeat  the  revenue  by  impost,  so  far  as  it  is  drawn  from  importa- 


890     commerce:   decisions  before  close  of  civil  war. 

tions  into  the  particular  State.  We  are  told,  that  such  wild  and 
irrational  abuse  of  power  is  not  to  be  apprehended,  and  is  not  to 
be  taken  into  view  when  discussing  its  existence.  All  power  may 
be  abused;  and  if  the  fear  of  its  abuse  is  to  constitute  an  argu- 
ment against  its  existence,  it  might  be  urged  against  the  exist- 
ence of  that  which  is  universally  acknowledged,  and  which  is 
indispensable  to  the  general  safety.  The  States  will  never  be  so 
mad  as  to  destroy  their  own  commerce,  or  even  to  lessen  it. 

We  do  not  dissent  from  these  general  propositions.  We  do  not 
suppose  any  State  would  act  so  unwisely.  But  we  do  not  place 
the  question  on  that  ground. 

These  arguments  apply  with  precisely  the  same  force  against 
the  whole  prohibition.  It  might,  with  the  same  reason  be  said, 
that  no  State  would  be  so  blind  to  its  own  interests  as  to  lay  du- 
ties on  importation  which  would  either  prohibit  or  diminish  its 
trade.  Yet  the  framers  of  our  Constitution  have  thought  this 
a  power  which  no  State  ought  to  exercise.  Conceding,  to  the 
full  extent  which  is  required,  that  every  State  would,  in  its  legis- 
lation on  this  subject,  provide  judiciously  for  its  own  interests, 
it  cannot  be  conceded,  that  each  would  respect  the  interests  of 
others.  A  duty  on  imports  is  a  tax  on  the  article  which  is  paid  by 
the  consumer.  The  great  importing  States  would  thus  levy  a 
tax  on  the  non-importing  States,  which  would  not  be  less  a  tax 
because  their  interest  would  afford  ample  security  against  its  ever 
being  so  heavy  as  to  expel  commerce  from  their  ports.  This  would 
necessarily  produce  countervailing  measures  on  the  part  of  those, 
States  whose  situation  was  less  favorable  to  importation.  For 
this,  among  other  reasons,  the  whole  power  of  laying  duties  on 
imports  was,  with  a  single  and  slight  exception,  taken  from  the 
States.  When  we  are  inquiring  w^hether  a  particular  act  is  within 
this  prohibition,  the  question  is  not,  whether  the  State  may  so 
legislate  as  to  hurt  itself,  but  whether  the  act  is  within  the  words 
and  mischief  of  the  prohibitory  clause.  It  has  already  been 
shown,  that  a  tax  on  the  article  in  the  hands  of  the  importer,  is 
within  its  words;  and  we  think  it  too  clear  for  controversy,  that 
the  same  tax  is  within  its  mischief.  We  think  it  unquestionable, 
that  such  a  tax  has  precisely  the  same  tendency  to  enhance  the 
price  of  the  article,  as  if  imposed  upon  it  while  entering  the  port. 

The  counsel  for  the  State  of  Maryland,  insist,  with  great  reason, 
that  if  the  words  of  the  prohibition  be  taken  in  their  utmost 
latitude,  they  will  abridge  the  power  of  taxation,  which  all  admit 
to  be  essential  to  the  States,  to  an  extent  which  has  never  yet  been 


BROWN  V.   MARYLAND.  891 

suspected,  and  %\'ill  deprive  them  of  resources  which  are  necessary 
to  supply  revenue,  and  which  they  have  heretofore  been  admitted 
to  possess.  These  words  must,  therefore,  be  construed  with 
some  hmitation;  and,  if  this  be  admitted,  they  insist,  that  enter- 
ing the  country  is  the  point  of  time  when  the  prohibition  ceases, 
and  the  power  of  the  State  to  tax  commences. 

It  may  be  conceded,  that  the  words  of  the  prohibition  ought 
not  to  be  pressed  to  their  utmost  extent;  that  in  our  complex 
system,  the  object  of  the  powers  conferred  on  the  government  of 
the  Union,  and  the  nature  of  the  often  conflicting  powers  which 
remain  in  the  States,  must  always  be  taken  into  \aew,  and  may 
aid  in  expounding  the  words  of  any  particular  clause.  But,  wliile 
we  admit  that  sound  principles  of  construction  ought  to  restrain 
all  courts  from  carrying  the  words  of  prohibition  beyond  the 
object  the  Constitution  is  intended  to  secure;  that  there  must 
be  a  point  of  time  when  the  prohibition  ceases,  and  the  power  of 
the  State  to  tax  commences;  we  cannot  admit  that  this  point 
of  time  is  the  instant  that  the  articles  enter  the  country.  It 
is,  we  think,  obvious,  that  this  construction  would  defeat  the 
prohibition. 

The  constitutional  prohibition  on  the  States  to  lay  a  duty  on 
imports,  a  prohibition  which  a  vast  majority  of  them  must  feel 
an  interest  in  preserving,  may  certainly  come  in  conflict  with  their 
acknowledged  power  to  tax  persons  and  property  within  their 
territory.  The  power,  and  the  restriction  on  it,  though  quite 
distinguishable  when  they  do  not  approach  each  other  may  yet, 
like  the  intervening  colors  between  white  and  black,  approach  so 
nearly  as  to  perplex  the  understanding,  as  colors  perplex  the  vision 
in  marking  the  distinction  between  them.  Yet  the  distinction 
exists,  and  must  be  marked  as  the  cases  arise.  Till  they  do  arise, 
it  might  be  premature  to  state  any  rule  as  being  universal  in  its 
application.  It  is  sufficient  for  the  present  to  say,  generally, 
that  when  the  importer  has  so  acted  upon  the  thing  imported,  that 
it  has  become  incorporated  and  mixed  up  with  the  mass  of  prop- 
erty in  the  country,  it  has,  perhaps,  lost  its  distinctive  character 
as  an  import,  and  has  become  subject  to  the  taxing  power  of  the 
State;  but  while  remaining  the  property  of  the  importer,  in  his 
warehouse,  in  the  original  form  or  package  in  which  it  was  im- 
ported, a  tax  upon  it  is  too  plainly  a  duty  on  imports  to  escape  the 
prohibition  in  the  Constitution. 

The  counsel  for  the  plaintiffs  in  error  contend,  that  the  importer 
purchases,  by  payment  of  the  duty  to  the  United  States,  a  right 


892     commerce:   decisions  before  close  of  civil  wau. 

to  dispose  of  his  merchandise,  as  well  as  to  bring  it  into  the  coun- 
try; and  certainly  the  argument  is  supported  by  strong  reason, 
as  well  as  by  the  practice  of  nations,  including  our  o^^^l.  The 
object  of  importation  is  sale;  it  constitutes  the  motive  for  pay- 
ing the  duties;  and  if  the  United  States  possess  the  power  of  con- 
ferring the  right  to  sell,  as  the  consideration  for  which  the  duty 
is  paid,  every  principle  of  fair  dealing  recjuires  that  they  should 
he  understood  to  confer  it.  The  practice  of  the  most  commercial 
nations  conforms  to  this  idea.  Duties,  according  to  that  prac- 
tice, are  charged  on  those  articles  only  which  are  intended  for 
sale  or  consumption  in  the  country.  Thus,  sea  stores,  goods  im- 
ported and  re-exported  in  the  same  vessel,  goods  landed  and 
carried  over  land  for  the  purpose  of  being  re-exported  from  some 
other  port,  goods  forced  in  by  stress  of  weather,  and  landed,  but 
not  for  sale,  are  exempted  from  the  payment  of  duties.  The  whole 
course  of  legislation  on  the  subject  shows,  that,  in  the  opinion 
of  the  legislature,  the  right  to  sell  is  connected  with  the  payment 
of  duties. 

The  counsel  for  the  defendant  in  error  have  endeavored  to 
illustrate  their  proposition,  that  the  constitutional  prohibition 
ceases  the  instant  the  goods  enter  the  country,  by  an  array  of 
the  consequences  which  they  suppose  must  follow  the  denial  of 
it.  If  the  importer  acquires  the  right  to  sell  by  the  payment  of 
duties,  he  may,  they  say,  exert  that  right  when,  where,  and  as  he 
pleases,  and  the  State  cannot  regulate  it.  He  may  sell  by  retail, 
at  auction,  or  as  an  itinerant  peddler.  He  may  introduce  articles, 
as  gunpowder,  which  endanger  a  city,  into  the  midst  of  its  popu- 
lation; he  may  introduce  articles  which  endanger  the  public 
health,  and  the  power  of  self-preservation  is  denied.  An  im- 
•  porter  may  bring  in  goods,  as  plate,  for  his  own  use,  and  thus 
retain  much  valuable  property  exempt  from  taxation. 

These  objections  to  the  principle,  if  well  founded,  would  certainly 
be  entitled  to  serious  consideration.  But,  we  think,  they  will 
be  found,  on  examination,  not  to  belong  necessarily  to  the  prin- 
ciple, and,  consequently,  not  to  prove,  that  it  may  not  be  resorted 
to  with  safety  as  a  criterion  by  which  to  measure  the  extent  of 
the  prohibition. 

This  indictment  is  against  the  importer,  for  selling  a  package 
of  dry  goods  in  the  form  in  which  it  was  imported,  without  a 
license.  This  state  of  things  is  changed  if  he  sells  them,  or 
otherwise  mixes  them  wdth  the  general  property  of  the  State, 
by  breaking  up  his   packages,  and  travehng  with  them  as  an 


BROWN  V.   MARYLAND.  893 

itinerant  peddler.  In  the  first  ease,  the  tax  intercepts  the  im- 
port, as  an  import,  in  its  way  to  become  incorporated  with 
the  general  mass  of  property,  and  denies  it  the  privilege  of 
becoming  so  incorporated  until  it  shall  have  contributed  to  the 
revenue  of  the  State.  It  denies  to  the  importer  the  right  of  using 
the  privilege  which  he  has  purchased  from  the  United  States, 
until  he  shall  have  also  purchased  it  from  the  State.  In  the  last 
cases,  the  tax  finds  the  article  already  incorporated  with  the  mass 
of  property  by  the  act  of  the  importer.  He  has  used  the  privi- 
lege he  had  purchased,  and  has  himself  mixed  them  up  with  the 
common  mass,  and  the  law  may  treat  them  as  it  finds  them. 
The  same  observations  apply  to  plate,  or  other  furniture  used  by 
the  importer. 

So,  if  he  sells  by  auction.  Auctioneers  are  persons  licensed 
by  the  State,  and  if  the  importer  chooses  to  employ  them,  he 
can  as  little  object  to  paying  for  this  service,  as  for  any  other 
for  which  he  may  apply  to  an  officer  of  the  State.  The  right  of 
sale  may  very  well  be  annexed  to  importation,  without  annexing 
to  it,  also,  the  privilege  of  using  the  officers  licensed  by  the  State 
to  make  sales  in  a  peculiar  wa}'. 

The  power  to  direct  the  removal  of  gunpowder  is  a  branch  of 
the  police  power,  which  unquestionably  remains,  and  ought  to 
remain,  with  the  States.  If  the  possessor  stores  it  himself  out 
of  towTi,  the  removal  cannot  be  a  duty  on  imports,  because  it 
contributes  nothing  to  the  revenue.  If  he  prefers  placing  it  in 
a  public  magazine,  it  is  because  he  stores  it  there,  in  his  own 
opinion,  more  advantageously  than  elsewhere.  We  are  not  sure 
that  this  may  not  be  classed  among  inspection  laws.  The  re- 
moval or  destruction  of  infectious  or  unsound  articles  is,  un- 
doubtedly, an  exercise  of  that  power,  and  forms  an  express 
exception  to  the  prohibition  we  are  considering.  Indeed,  the 
laws  of  the  United  States  expressly  sanction  the  health  laws  of 
a  State. 

The  principle,  then,  for  which  the  plaintiffs  in  error  contend, 
that  the  importer  acquires  a  right,  not  only  to  bring  the  articles 
into  the  country,  but  to  mix  them  with  the  common  mass  of  prop- 
erty, does  not  interfere  with  the  necessary  power  of  taxation  which 
is  acknowledged  to  reside  in  the  States,  to  that  dangerous  extent 
which  the  counsel  for  the  defendants  in  error  seem  to  apprehend. 
It  carries  the  prohibition  in  the  Constitution  no  farther  than 
to  prevent  the  States  from  doing  that  which  it  was  the  great  ob- 
ject of  the  Constitution  to  prevent. 


894     commerce:   decisions  before  close  of  civil  war. 

But  if  it  sliould  be  proved,  that  a  duty  on  the  article  itself 
would  be  repugnant  to  the  Constitution,  it  is  still  argued,  that 
this  is  not  a  tax  upon  the  article,  but  on  the  person.  The  State, 
it  is  said,  may  tax  occupations  and  this  is  nothing  more. 

It  is  impossible  to  conceal  from  ourselves,  that  this  is  varying 
the  form,  without  varying  the  substance.  It  is  treating  a  pro- 
hibition which  is  general,  as  if  it  were  confined  to  a  particular 
mode  of  doing  the  forbidden  thing.  All  must  perceive,  that  a 
tax  on  the  sale  of  an  article,  imported  only  for  sale,  is  a  tax  on 
the  article  itself.  It  is  true,  the  State  may  tax  occupations 
generally,  but  this  tax  must  be  paid  by  those  who  employ  the 
individual,  or  is  a  tax  on  his  business.  The  lawyer,  the  physician, 
or  the  mechanic,  must  either  charge  more  on  the  article  in  which 
he  deals,  or  the  thing  itself  is  taxed  through  his  person.  This 
the  State  has  a  right  to  do,  because  no  constitutional  prohibition 
extends  to  it.  So,  a  tax  on  the  occupation  of  an  importer  is,  in 
like  manner,  a  tax  on  importation.  It  must  add  to  the  price  of 
the  article,  and  be  paid  by  the  consumer,  or  by  the  importer 
himself,  in  like  manner  as  a  direct  duty  on  the  article  itself  would 
be  made.  This  the  State  has  not  a  right  to  do,  because  it  is  pro- 
hibited by  the  Constitution. 

In  support  of  the  argument,  that  the  prohibition  ceases  the 
instant  the  goods  are  brought  into  the  country,  a  comparison 
has  been  drawn  between  the  opposite  words  export  and  import. 
As,  to  export,  it  is  said,  means  only  to  carry  goods  out  of  the 
country;   so,  to  import,  means  only  to  bring  them  into  it.     But, 
suppose  we  extend  this  comparison  to  the  two  prohibitions.    The 
States  are  forbidden  to  lay  a  duty  on  exports,  and  the  United 
States  are  forbidden  to  lay  a  tax  or  duty  on  articles  exported  from 
any  State.    There  is  some  diversity  in  language,  but  none  is  per- 
ceivable in  the  act  which  is  prohibited.    The  United  States  have 
the  same  right  to  tax  occupations  which  is  possessed  by  the  States. 
Now,  suppose  the  United  States  should  require  every  exporter 
to  take  out  a  license,  for  which  he  should  pay  such  tax  as  Con- 
gress might  think  proper  to  impose;    would  government  be  per- 
mitted to  shield  itself  from  the  just  censure  to  which  this  attempt 
to  evade  the  prohibitions  of  the  Constitution  would  expose  it,  by 
saying,  that  this  was  a  tax  on  the  person,  not  on  the  article,  and 
that  the  legislature  had  a  right  to  tax  occupations?    Or,  suppose 
revenue  cutters  were  to  be  stationed  off  the  coast  for  the  purpose  of 
levying  a  duty  on  all  merchandise  found  in  vessels  which  were 
leaving  the  United  States  for  foreign  countries;    would  it    be 


BROWN   V.   MARYLAND.  895 

received  as  an  excuse  for  this  outrage,  were  the  government  to 
say  that  exportation  meant  no  more  than  carrying  goods  out  of 
the  country,  and  as  the  prohibition  to  lay  a  tax  on  imports,  or 
things  imported,  ceased  the  instant  they  were  brought  into  the 
country,  so  the  prohibition  to  tax  articles  exported  ceased  when 
they  were  carried  out  of  the  country? 

We  think,  then,  that  the  act  under  which  the  plaintiffs  in  error 
were  indicted,  is  repugnant  to  that  article  of  the  Constitution 
which  declares,  that  "no  State  shall  lay  any  impost  or  duties  on 
imports  or  exports." 

2.  Is  it  also  repugnant  to  that  clause  in  the  Constitution 
which  empowers  "Congress  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian 
tribes"  ? 

The  oppressed  and  degraded  state  of  commerce  previous  to  the 
adoption  of  the  Constitution  can  scarcely  be  forgotten.  It  was 
regulated  by  foreign  nations  with  a  single  view  to  their  own  in- 
terests; and  our  disunited  efforts  to  counteract  their  restrictions 
were  rendered  impotent  by  want  of  combination.  Congress, 
indeed,  possessed  the  power  of  making  treaties;  but  the  inability 
of  the  Federal  government  to  enforce  them  had  become  so  appar- 
ent as  to  render  that  power  in  a  great  degree  useless.  Those  who 
felt  the  injury  arising  from  this  state  of  things,  and  those  who 
were  capable  of  estimating  the  influence  of  commerce  on  the  pros- 
perity of  nations,  perceived  the  necessity  of  giving  the  control 
over  this  important  subject  to  a  single  government.  It  may  be 
doubted  whether  any  of  the  evils  proceeding  from  the  feebleness 
of  the  Federal  government,  contributed  more  to  that  great  revolu- 
tion which  introduced  the  present  system,  than  the  deep  and 
general  conviction,  that  commerce  ought  to  be  regulated  by  Con- 
gress. It  is  not,  therefore,  matter  of  surprise,  that  the  grant 
should  bo  as  extensive  as  the  mischief,  and  should  comprehend 
all  foreign  commerce,  and  all  commerce  among  the  States.  To 
construe  the  power  so  as  to  impair  its  efficacy,  would  tend  to 
defeat  an  object,  in  the  attainment  of  which  the  American  public 
took,  and  justly  took,  that  strong  interest  which  arose  from  a  full 
conviction  of  its  necessity. 

What,  then,  is  the  just  extent  of  a  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States? 

This  question  was  considered  in  the  case  of  Gibbons  v.  Ogden,  9 
Wheat.  Rep.  1,  in  which  it  was  declared  to  be  complete  in  itself, 
and  to  acknowledge  no  limitations  other  than  are  prescribed  by  the 


890     commerce:   decisions  before  close  of  civil  war. 

Constitution.  The  power  is  co-extensive  with  the  subject  on  which 
it  acts,  and  cannot  be  stopped  at  the  external  boundary  of  a 
State,  but  must  enter  its  interior. 

We  *deem  it  unnecessary  now  to  reason  in  support  of  these 
propositions.  Their  truth  is  proved  by  facts  continually  before 
our  eyes,  and  was,  we  think,  demonstrated,  if  they  could  require 
demonstration,  in  the  case  already  mentioned. 

If  this  power  reaches  the  interior  of  a  State,  and  may  be  there 
exercised,  it  must  be  capable  of  authorizing  the  sale  of  those  arti- 
cles which  it  introduces.  Commerce  is  intercourse:  one  of  its 
most  ordinary  ingredients  is  traffic.  It  is  inconceivable,  that  the 
power  to  authorize  this  traffic,  when  given  in  the  most  compre- 
hensive terms,  with  the  intent  that  its  efficacy  should  be  complete, 
should  cease  at  the  point  when  its  continuance  is  indispensable 
to  its  value.  To  what  purpose  should  the  power  to  allow  importa- 
tion be  given,  unaccomi)anied  with  the  power  to  authorize  a 
sale  of  the  thing  imported?  Sale  is  the  object  of  importation,  and 
is  an  essential  ingredient  of  that  intercourse,  of  which  importa- 
tion constitutes  a  part.  It  is  as  essential  an  ingredient,  as  indis- 
pensable to  the  existence  of  the  entire  thing,  then,  as  importation 
itself.  It  must  be  considered  as  a  comi)onent  part  of  the  power 
to  regulate  commerce.  Congress  has  a  right,  not  only  to  authorize 
importation,  but  to  authorize  the  importer  to  sell. 

If  this  be  admitted,  and  we  think  it  cannot  be  denied,  what  can 
be  the  meaning  of  an  act  of  Congress  which  authorizes  importa- 
tion, and  offers  the  privilege  for  sale  at  a  fixed  price  to  every 
person  who  chooses  to  become  a  purchaser?  How  is  it  to  be 
construed,  if  an  intent  to  deal  honestly  and  fairly,  an  intent  as  wise 
as  it  is  moral,  is  to  enter  into  the  construction?  What  can  be 
the  use  of  the  contract,  what  does  the  importer  purchase,  if  he 
does  not  purchase  the  privilege  to  sell? 

What  would  be  the  language  of  a  foreign  government,  which 
should  be  informed  that  its  merchants,  after  importing  according 
to  law,  u-^re  forbidden  to  sell  the  merchandise  imported?  What 
answer  would  the  United  States  give  to  the  complaints  and  just 
reproaches  to  which  such  an  extraordinary  circumstance  would 
expose  them?  No  apology  could  be  received,  or  even  offered. 
Such  a  state  of  things  would  break  up  commerce.  It  will  not 
meet  this  argument,  to  say,  that  this  state  of  things  will  never 
be  produced;  that  the  good  sense  of  the  States  is  a  sufficient 
security  against  it.  The  Constitution  has  not  confided  this  sub- 
ject to  that  good  sense.     It  is  placed  elsewhere.     The  question 


BROWN  V.   MARYLAND.  897 

is,  where  does  the  power  reside?  not,  how  far  will  it  be  probabl}- 
abused?  The  power  claimed  by  the  State  is,  in  its  nature,  in 
conflict  with  that  given  to  Congress;  and  the  greater  or  less 
extent  in  which  it  may  be  exercised  does  not  enter  into  the  in- 
quiry concerning  its  existence. 

We  think,  then,  that  if  the  power  to  authorize  a  sale  exists  in 
Congress,  the  conclusion  that  the  right  to  sell  is  connected  with 
the  law  permitting  importation,  as  an  inseparable  incident,  is 
inevitable. 

If  the  principles  we  have  stated  be  correct,  the  result  to  which 
they  conduct  us  cannot  be  mistaken.  Any  penalty  inflicted  on 
the  importer  for  selling  the  article  in  his  character  of  im- 
porter, must  be  in  opposition  to  the  act  of  Congress  which 
authorizes  importation.  Any  charge  on  the  introduction  and 
incorporation  of  the  articles  into  and  with  the  mass  of  property 
in  the  country,  must  be  hostile  to  the  power  given  to  Congress  to 
regulate  commerce,  since  an  essential  part  of  that  regulation,  and 
principal  object  of  it,  is  to  prescribe  the  regular  means  for  accom- 
plishing that  introduction  and  incorporation. 

The  distinction  between  a  tax  on  the  thing  imported,  and  on 
the  person  of  the  importer,  can  have  no  influence  on  this  part  of 
the  subject.  It  is  too  obvious  for  controversy,  that  they  interfere 
equally  with  the  power  to  regulate  commerce. 

It  has  been  contended,  that  this  construction  of  the  power  to 
regulate  commerce,  as  was  contended  in  construing  the  prohibi- 
tion to  lay  duties  on  imports,  would  abridge  the  acknowledged 
power  of  a  State  to  tax  its  own  citizens,  or  their  property  within 
its  territory. 

We  admit  this  power  to  be  sacred;  but  cannot  admit  that  it 
may  be  used  so  as  to  obstruct  the  free  course  of  a  power  given  to 
Congress.  We  cannot  admit,  that  it  may  be  used  so  as  to  obstruct 
or  defeat  the  power  to  regulate  commerce.  It  has  been  observed, 
that  the  powers  remaining  with  the  States  may  be  so  exercised 
as  to  come  in  conflict  with  those  vested  in  Congress.  When  this 
happens,  that  which  is  not  supreme  must  yield  to  that  which  is 
supreme.  This  great  and  universal  truth  is  inseparable  from  the 
nature  of  things,  and  the  Constitution  has  applied  it  to  the  often 
interfering  powers  of  the  general  and  State  governments,  as  a  vital 
principle  of  perpetual  operation.  It  results,  necessarily,  from  this 
principle,  that  the  taxing  power  of  the  States  must  have  some 
limits.  It  cannot  reach  and  restrain  the  action  of  the  National 
government  within  its  proper  sphere.     It  cannot  reach  the  ad- 


898     commerce:   decisions  before  close  of  civil  war. 

ministration  of  justice  in  the  courts  of  the  Union,  or  the  collec- 
tion of  the  taxes  of  the  United  States,  or  restrain  the  operation  of 
any  law  which  Congress  may  constitutionally  pass.  It  cannot 
interfere  with  any  regulation  of  commerce.  If  the  States  may  tax 
all  persons  and  property  found  on  their  territory,  what  shall  re- 
strain them  from  taxing  goods  in  their  transit  through  the  State 
from  one  port  to  another,  for  the  purpose  -of  re-exportation? 
The  laws  of  trade  authorize  this  operation,  and  general  convenience 
requires  it.  Or  what  should  restrain  a  State  from  taxing  any 
article  passing  through  it  from  one  State  to  another,  for  the  pur- 
pose of  traffic?  or  from  taxing  the  transportation  of  articles  passing 
from  the  State  itself  to  another  State,  for  commercial  })urposes? 
These  cases  are  all  within  the  sovereign  power  of  taxation,  but 
would  obviously  derange  the  measures  of  Congress  to  regulate 
commerce,  and  affect  materially  the  purpose  for  which  that 
power  was  given.  We  deem  it  umiecessary  to  press  this  argument 
farther,  or  to  give  additional  illustrations  of  it,  because  the  sub- 
ject was  taken  up,  and  considered  with  great  attention  in 
M'Culloch  V.  The  State  of  Maryland,  4  Wheat.  Rep.  316,  the 
decision  in  which  case  is,  we  think,  entirely  applicable  to  this. 

It  may  be  proper  to  add,  that  we  suppose  the  principles  laid 
down  in  this  case,  to  apply  equally  to  importations  from  a  sister 
State.  We  do  not  mean  to  give  any  opinion  on  a  tax  discriminat- 
ing between  foreign  and  domestic  articles. 

We  think  there  is  error  in  the  judgment  of  the  Court  of  Appeals 
of  the  State  of  Maryland,  in  affirming  the  judgment  of  the  Balti- 
more City  Court,  because  the  act  of  the  legislature  of  Maryland 
imposing  the  penalty  for  which  the  said  judgment  is  rendered, 
is  repugnant  to  the  Constitution  of  the  United  States,  and,  conse- 
quently, void.  The  judgment  is  to  be  reversed,  and  the  cause 
remanded  to  that  court,  with  instructions  to  enter  judgment  in 
favor  of  the  appellants.  .  .  .^ 

Thompson,  J.,  dissenting.  .  .  . 

»  Compare  Waring  v.  Mayor,  8  Wall.  110  (1869).  — Ed. 


WILLSON   V.    BLACKBIRD   CREEK   MARSH   CO.  899 

WILLSON  V.   BLACKBIRD   CREEK  MARSH  CO. 
Supreme  Court  of  the  United  States.     1829. 

[2  Peters,  245.]  i 

Error  to  the  Court  of  Errors  and  Appeals  of  Delaware. 

A  Delaware  statute  incorporated  the  Blackbird  Creek  Marsh 
Company,  o\\'rier  of  niarshes  and  low  ground  in  Delaware  on  both 
sides  of  Blackbird  Creek,  an(j_authorized  it  to  make  a  dam  across 
the  creek.  The  company  built  the  dam  and  brought  an  action 
of  trespass  against  the  o^vners  of  a  sloop^jvhich  was  licensed  and 
enrolled  under  tne  navigation  laws  nf  f^  rfrn^^^^^si^^tf^^ 
breaking  the  dam  so  erecj^d.  One  of  the  pleas  was  that  the^n.cp 
of  the  supposed  trespass  was  part  of  Blackbird  Creek,  a  public 
and  common  navigable  creek,  in  the  nature  of  a  highway,  in 
which  the  tides  have  always  flowed,  and  that  the  company's  dam 
wrongfully  obstructed  it  so  that  the  sloop  could  not  pass,  ?yid 
that  the  dam  was  broken  in  order  to  remove  the  obstruction.  On 
demurrer,  tho  St.-itp  pnnrf  g•a^I^jn^^rrn^|pr^j^J<^^l^f^P  rnmpnny;  and 
this^judgment  was  uljjmatply  nfltou^dJnThe  Court  of  Appeals. 

Coxe,  for  plaintiff  in  error;  and  Wirt,  Attorney  General,  contra. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  jurisdiction  of  the  court  being  established,  the  more  doubt- 
ful question  is  to  be  considered,  whether  the  act  incorporating 
the  Blackbird  Creek  Marsh  Company  is  repugnant  to  the  Con- 
stitution, so  far  as  it  authorizes  a  dam  across  the  creek.  The 
plea  states  the  creek  to  be  navigable,  in  the  nature  of  a  highway, 
through  which  the  tide  ebbs  and  flows. 

The  act  of  assembly  by  which  the  plaintiffs  were  authorized 
to  construct  their  dam,  shows  plainly  that  this  is  one  of  those 
many  creeks,  passing  through  a  deep  level  marsh  adjoining  the 
Delaware,  up  which  the  tide  flows  for  some  distance.  The  value 
of  the  property  on  its  banks  must  be  enhanced  by  excluding  the 
water  from  the  marsh,  and  the  health  of  the  inhabitants  prob- 
ably improved.  Measures  calculated  to  produce  these  objects, 
provided  they  do  not  come  into  collision  with  the  powers  of  the 
general  govermnent,  are  undoubtedly  within  those  which  are  re- 
served to  the  States.  But  the  measure  authorized  by  this  act 
stops  a  navigable  creek,  and  must  be  supposed  to  abridge  the 
rights  of  those  who  have  been  accustomed  to  use  it.     But  this 

'  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


900     commerce:   decisions  before  close  of  civil  wak. 

abridgment,  unless  it  comes  in  conflict  with  the  Constitution  or 
a  law  of  the  United  States,  is  an  affair  betwirn  the  government 
of  Delaware  and  its  citizens,  of  which  this  court  can  take  no 

cognizance. 

The  counsel  for  the  plaintiffsjn_e£rnr  insist  that  it  comes  in 
conflict  with  the  power j)f_lllg  HniteU  laUitc,-.-  "to  rognlate  r()m- 
mcrcr  ^inthJoHii^J^n^^  a"">"f-^  the  several  States." 

If'Congress  had  pa.ssed__anY  act  which  hove  upon  the  ca.se;  any 
act  m  execution  of  tjiej^'^-r  t,>  rrfrnl:it.-  coinnu^me.  tTTc  oj)iect 
f^Hyh'-^^^  ^^'-^^  trwwT^Tstati-  IcLnslation  over  those  small  navi- 

fl()\V,s,  nnd  which  abound  throutrii- 


gable  creeksinto_wJiich  ^hp  fi  

out  tb^l^wornniimt^  of  the  middle  and  soulJujiiLStntrs;  we  sh(mld 

feel jnntjjiucll  (UfficultV  in  iinyinr:  thnt  n  Ht:i^"  '-^^^^  nnminfr  \n  mn- 

fiict  with  such  act  wi)iiid-bc-:u^**4r  But  Ccmgr^ss  has  piuyseci  no 
sucTTact  The  repugnancy  of  the  law  of  Delaware  to  the  Con- 
stitution is  placed  entirely  on  its  repugnancy  to  the  power  to 
regulate  commerce  with  foreign  nations  and  among  the  several 
States;  a  power  which  has  not  been  so  exercised  as  to  affect  the 
question. 

We  do  not  think  that  Uie  act  empowering  the  Blackbird  Creek 
Marsh  Company  to  place^Tdain_axT^    tlie  creek,  canjinderj^l 

raiTum"tnnrr2J>rth:i_fnir.  h'^  n,^^dnr,u\  n.s  rr^pil^fH^nLta-lhc 


powerlioTegurate  commerce  inJts-4loi'mmit  utatc,  or  oa  boiag  in 
mnflictwith  any  law  paafiilLi}nJii£-auI)ject. 

There  is  no  error,  and  the  judgment  is  affirmed.^ 


NEW  YORK  I'.   MILN. 
Supreme  Court  of  the  United  States.     1837. 

[11  Peters,  102.]  ^ 

Certificate  of  division  from  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  New  York. 

In  the  Superior  Court  of  the  City  of  New  York  action  of  debt 

1  See  Pennsylvania  v.  Wheeling  and  Belmont  Bridge  Co.,  18  How.  421 
(1855);  Willamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1  (1888);  Cummings 
V.  Chicago,  188  U.  S.  410  (1903).  —  Ed. 

2  The  full  title  is  The  Mayor,  Aldermen,  and  Commonalty  of  the  City  of 
New  York  v.  Miln.    The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


NEW  YORK  V.   MILN.  901 

was  brought  for  penalties  incurred  under  an  act  of  the  legislature 
of  February  11,  1824,  requiring  the  master  of  any  vessel  arrivino-  in 
the  port  of  New  York  from  any  other  State  or  from  any  foreign 
country  to  make,  within  twenty-four  hours  of  arrival,  a  written 
report  of  the  name,  place  of  birth  and  last  legal  settlement,  age 
and  occupation  of  every  passenger,  under  penalty  on  such  master 
and  the  owner  or  consignee  of  such  vessel,  respectively,  of  S75  for 
every  person  registered  to  be  reported  and  for  every  person  as  to 
whom  the  particulars  were  reported  falsely.  The  action  was 
brought  against  the  consignee  of  a  vessel  from  abroad  The  case 
was  removed  into  the  Circuit  Court  of  the  United  States,  on  ac- 
count of  the  defendant's  being  an  ahen;  and,  the  declaration  hav- 
ing been  demurred  to,  the  judges  certified  a  difference  of  opinion 
on  the  constitutionality  of  the  statute  as  a  regulation  of  foreign 
commerce. 

In  the  Supreme  Court  the  justices  were  divided  in  opinion  and 
a  reargument  was  directed. 

Blount  and  Ogden,  for  plaintiff;  and  White  and  Jones,  contra. 
Barbour,  J.,  delivered  the  opinion  of  the  court. 
It  is  contended  by  the  counsel  for  the  defendant,  that  the  act  in 
question  is  a  regulation  of  commerce;  that  the  power  to  remil^P 
commerce  18.  by  the  Constitutb^f  the  United  States,  granted  to 
ggilEgg^:  that  tilisJ^o^^TlMs_excluslye,  and  that,  consequentjvjhe 
^^tis^!L}2oMlmxi£-t^if^^  of  the  United  States.""^"'^ 

OnThb  part  of  the  plaintiff  it  is  argued,  that  an  affirmative  grant 
of  power  previously  existing  in  the  States  to  Congress,  is  not  ex- 
clusive; except,  1st,  where  it  is  so  expressly  declared  in  terms,  by 
the  clause  giving  the  power;  or  2dly,  where  a  similar  power  is  pro- 
hibited to  the  States:  or  3dly,  where  the  power  in  the  States  would 
be  repugnant  to,  and  incompatible  with,  a  similar  power  in  Con- 
gress; that  this  power  falls  within  neither  of  these  predicaments; 
that  it  is  not,  in  terms,  declared  to  be  exclusive;  that  it  is  not  pro^ 
hibited  to  the  States;  and  that  it  is  not  repugnant  to,  or  incom- 
patible with,  a  similar  power  in  Congress;  and  that  having 
preexisted  in  the  States,  they  therefore  have  a  concurrent  power 
in  relation  to  the  subject;  and  that  the  act  in  question  would  be 
valid,  even  if  it  were  a  regulation  of  commerce,  it  not  contraven- 
ing any  regulation  made  by  Congress. 

But  they  deny  that  it  is  a  regulation  of  commerce:  on  the  con- 
trary, they  assert  that  it  is  a  mere  regulation  of  internal  pohce,  a 
power  over  which  is  not  granted  to  Congress;  and  which  therefore, 
as  well  upon  the  true  construction  of  the  Constitution,  as  by  force 


902     commerce:   decisions  before  close  of  civil  war. 

of  the  tenth  amendment  to  that  instrument,  is  reserved  to  and 
resides  in  the  several  States. 

We  shall  not  enter  into  any  examination  of  the  question  whether 
the  power  to  regulate  commerce,  be  or  be  not  exclusive  of  the 
States,  because  the  opinion  which  we  have  formed  renders  it  un- 
necessary; in  other  words,  wo  are  of  opinion  that  the  act  is  nota 
regulation  of  commercojmt^of  pclH^and  that  homg  thus  con- 
sirlprod.  it  was  mSi^^nrrTITrcxercisi-  of  a  power  which  ri^ditfully 
belong(Ml  to  the  States. 

"That  the  State  of  New  York  possessed  power  to  pass  this  law 
before  the  adoption  of  the  Constitution  of  the  United  States,  might 
probably  be  taken  as  a  truism,  without  the  necessity  of  proof.  .  .  . 
The  power  then  of  New  York  to  pass  this  jawhaving  undeniably 
eStcd  atirTTTmStion  of  the  roiTsTiTuTuTirTf^^  inquiryis, 
whethcrl)y  that  insfrumcnt  it  was  tal^ciTfroni  the  States,  and 
""gi^nted  to  Congress;  for  if  it  were  not,  it  yet  r(-main^  witlTtheU^- 
nrfTaTwe  thmk'  it  bejijTgulajjoi^^  buLlLoli^t-, 

then  it  is  not  taken  from  the  States.   To  decide  this>t_us_exaniine 
^tspufpose,  the  end  to  be  attained^  and  the  means  orit^ittainmcnt. 
iris  apparerrrrTTom  the  wholc^'scoi^e  of  the  law,  that  the  object 
of  the  legislature  was,  to  prevent  New  York  from  l)eing  burdened 
by  an  influx  of  persons  brought  thither  in  ships,  either  from  foreign 
countries,  or  from  any  other  of  the  States;  and  for  that  purpose 
a  report  was  required  of  the  names,  places  of  birth,  etc.,  of  all 
passengers,  that  the  necessary  steps  might  be  taken  by  the  city 
authorities,  to  prevent  them  from  becoming  chargeable  as  paupers. 
Now,  we  hold  that  both  the  end  and  the  means  here  used  are 
within  the  competency  of  the  States,  since  a  portion  of  their  powers 
were  surrendered  to  the  federal  government.     Let  us  see  what 
powers  are  left  with  the  States.    The  Federalist,  in  the  45th  num- 
ber, speaking  of  this  subject,  says:  the  powers  reserved  to  the 
several  States  will  extend  to  all  the  objects,  which  in  the  ordinary 
course  of  affairs  concern  the  lives,  liberties,  and  properties  of  the 
people;  and  the  internal  order,  improvement,  and  prosperity  of 

the  State. 

And  this  court,  in  the  case  of  Gibbons  v.  Ogden,  9  Wheat.  203, 
which  will  hereafter  be  more  particularly  noticed,  in  speaking  of 
the  inspection  laws  of  the  States,  say:  they  form  a  portion  of  that 
immense  mass  of  legislation  which  embraces  every  thing  withm 
the  territory  of  a  State,  not  surrendered  to  the  general  government, 
ail.. which  can  be  most  advantageously  exercised  by  the  States 
themselves.     Inspection  laws,  quarantine  laws,  health  laws  of 


NEW   YORK  V.   MILN.  903 

every  description,  as  well  as  laws  for  regulating  the  internal  com- 
merce of  a  State,  and  those  which  respect  turnpike  roads,  ferries, 
etc.,  are  component  parts  of  this  mass. 

Now,  if  the  act  in  question  be  tried  by  reference  to  the  delinea- 
tion of  power  laid  down  in  the  preceding  quotations,  it  seems  to  as 
that  we  are  necessarily  brought  to  the  conclusion,  that  it  falls 
withm  its  Hmits.  There  is  no  aspect  in  which  it  can  be  viewed  in 
which  It  transcends  them.  If  we  look  at  the  place  of  its  operation, 
we  find  it  to  be  within  the  territory,  and,  therefore,  within  the 
jurisdiction  of  New  York.  If  we  look  at  the  person  on  whom  it 
operates,  he  is  found  within  the  same  territory  and  jurisdiction. 
If  we  look  at  the  persons  for  whose  benefit  it  was  passed,  they  are 
the  people  of  New  York,  for  whose  protection  and  welfare  the 
legislature  of  that  State  are  authorized  and  in  duty  bound  to 
provide. 

If  we  turn  our  attention  to  the  purpose  to  be  attained,  it  is  to 
secure  that  very  protection,  and  to  provide  for  that  very  welfare. 
If  we  examine  the  means  by  which  these  ends  are  proposed  to  be 
accompUshed,  they  bear  a  just,  natural,  and  appropriate  relation 
to  those  ends. 

But  we  are  told  that  it  violates  the  Constitution  of  the  United 
States,  and  to  prove  this  we  have  been  referred  to  two  cases  in  this 
court;  the  first,  that  of  Gibbons  v.  Ogden,  9  Wheat.  1,  and  the 
other  that  of  Brown  v.  The  State  of  Maryland,  12  Ibid.  419. 

Now,  it  is  difficult  to  perceive  what  analogy  there  can  be  be- 
tween a  case  where  the  right  of  the  State  was  inquired  into,  in  re- 
lation to  a  tax  imposed  upon  the  sale  of  imported  goods,  and  one 
where,  as  in  this  case,  the  inquiry  is  as  to  its  right  over  persons 
within  its  acknowledged  jurisdiction;  the  goods  are  the  subject 
^f  commerce,  the  persons  are  not:  the  court  did  indeed  extencl 
the  power  to  regulate  commerce,  so  as  to  protect  the  goods  im- 
ported from  a  State  tax  after  they  were  landed,  and  were  yet  in 
bulk;  but  why?  Because  they  were  the  subjects  of  commerce; 
and  because,  as  the  power  to  regulate  commerce,  under  which  the 
importation  was  made,  implied  a  right  to  sell;  that  right  was  com- 
plete, without  paying  the  State  for  a  second  right  to  sell,  whilst  the 
bales  or  packages  were  in  their  original  form.  But  how  can  this 
apply  to  persons?  Thev  are  not  the  subject  of^commerceTa^, 
fiof  being  imported  goods,  cannot  fall  within  a  train  of  reasoning 
founded  upon  the  cnnstrnftion  of  a  power  given  to  CongresT  to 
rpp-iilMtP  PAmmprpg,  nnri  f}.»  pn^if.^|i-p^  ^^  til^jjtatesjrom  impog'- 

ing  a  rjirh^^  on  impnrtPf]  cTf^^^r]^     .    _    _ 


904     commerce:   decisions  before  close  of  civil  war. 

We  have  been  referred  to  the  revenue  act  of  1799,  and  to  the 

act  of  1819,  relating  to  passengers.  The  whole  amount  of  the 
provision  in  relation  to  this  subject,  in  the  first  of  these  acts,  is  to 
require,  in  the  manifest  of  a  cargo  of  goods,  a  statement  of  the 
names  of  the  passengers,  with  their  baggage,  specifying  the  num- 
ber and  description  of  packages  belonging  to  each  respectively: 
now  it  is  apparent,  as  well  from  the  language  of  this  provision,  as 
from  the  context,  that  the  purpose  was  to  prevent  goods  being 
imported  without  paying  the  duties  required  by  law,  untler  the 
pretext  of  being  the  baggage  of  passengers. 

The  act  of  1819  contains  regulations  obviously  designed  for  the 
comfort  of  the  passengers  themselves:  for  this  purpose  it  prohibits 
the  bringing  more  than  a  certain  number  proportioned  to  the  ton- 
nage of  the  vessel,  and  prescribes  the  kind  and  quality  of  provi- 
sions, or  sea  stores,  and  their  quantity,  in  a  certain  proportion  to 
the  number  of  the  passengers. 

Another  section  requires  the  master  to  report  to  the  collector  a 
list  of  all  passengers,  designating  the  age,  sex,  occupation,  the 
country  to  which  they  belong,  etc.;  which  hst  is  required  to  be 
delivered  to  the  Secretary  of  State,  and  which  he  is  directed  to 
lay  before  Congress. 

The  object  of  this  clause,  in  all  probabiUty,  was  to  enable  the 
government  of  the  United  States  to  form  an  accurate  estimate  of 
the  increase  of  population  by  emigration;  but  whatsoever  may 
have  been  its  purpose,  it  is  obvious  that  these  laws  only  affect, 
through  the  power  over  navigation,  the  passengers  whilst  on  their 
voyage,  and  until  they  shall  have  landed.  After  that,  and  when 
they  have  ceiised  to  have  any  connection  with  the  ship,  and  when, 
therefore,  they  have  ceased  to  be  passengers;  we  are  satisfied,  that 
acts  of  congress,  applying  to  them  as  such,  and  only  professing  to 
legislate  in  relation  to  them  as  such,  have  then  performed  their 
office,  and  can,  with  no  propriety  of  language,  be  said  to  come  into 
conflict  with  the  law  of  a  State,  whose  operation  only  begins  when 
that  of  the  laws  of  Congress  ends ;  whose  operation  is  not  even  on 
the  same  subject,  because  although  the  person  on  whom  it  oper- 
ates is  the  same,  yet  having  ceased  to  be  a  passenger,  he  no  longer 
stands  in  the  only  relation  in  which  the  laws  of  Congress  either 
professed  or  intended  to  act  upon  him.  .  .  . 

But  we  do  not  place  our  opinion  on  this  ground.  We  choose 
rather  to  plant  ourselves  on  what  we  consider  impregnable  posi- 
tions. They  are  these :  That  a  State  has  the  same  undeniable  and 
unlimited  jurisdiction  over  all  persons  and  tnmgs,  within  its  terri- 


NEW  YORK  V.   MILN.  905 

torial  limits,  as  any  foreign  nation ;  where  that  jurisdiction  is  not 
surrendered  of  restrained  by  the  Constitution  ofthe  United  States. 
ThafT^jy  virtue  of  this,  it  is  not  only  the  right,  but  the  bounden 
and  solemn  duty  of  a  Stated  to  advance  the  safety,  happiness,  and 
prosperity  of  its  people,  and  to  provide  for  its  general  welfare,  by 
any  and  every  act  of  legislation  which  it  may  deem  to  be  con- 
ducive to  these  ends;  where  the  power  over  the  particular  subject, 
or  the  manner  of  its  exercise,  is  not  surrendered  or  restrained,  in 
the  manner  just  stated.  That  all  those  powers  which  relate  to 
merely  municipal  legislation,  or  what  may,  perhaps,  more  prop- 
erly be  called  internal  police,  arc  not  thus  surrendered  or  restrained ; 
and  that,  consequently,  in  relation  to  these,  the  authority  of  a 
State  is  complete,  unqualified,  and  exclusive. 

We  are  aware  that  it  is  at  all  times  difficult  to  define  any  sub- 
ject with  proper  precision  and  accuracj^;  if  this  be  so  in  general, 
it  is  emphatically  so  in  relation  to  a  subject  so  diversified  and  mul- 
tifarious as  the  one  which  we  are  now  considering. 

If  we  were  to  attempt  it,  we  should  say,  that  every  law  came 
within  this  description  which  concerned  the  welfare  of  the  whole 
people  of  a  State,  or  any  individual  within  it;  whether  it  related  to 
their  rights,  or  their  duties;  whether  it  respected  them  as  men,  or 
as  citizens  of  the  State;  whether  in  their  public  or  private  rela- 
tions; whether  it  related  to  the  rights  of  persons,  or  of  property, 
of  the  whole  people  of  a  State,  or  of  any  individual  within  it;  and 
whose  operation  was  within  the  territorial  limits  of  the  State,  and 
upon  the  persons  and  things  within  its  jurisdiction.  But  we  will 
endeavor  to  illustrate  our  meaning  rather  by  exemplification, 
than  by  definition.  No  one  will  deny,  that  a  State  has  a  right  to 
punish  any  individual  found  within  its  jurisdiction,  who  shall 
have  committed  an  offence  within  its  jurisdiction,  against  its 
criminal  laws.  We  speak  not  here  of  foreign  ambassadors,  as  to 
whom  the  doctrines  of  public  law  apply.  We  suppose  it  to  be 
equally  dear,  that  a  State  hag  as  much  right"To  guardj3>-  anticl- 
pation,  against__the  commission  of  an  offence  against  its  laws,  as 
to  intllCt  punishment  upon  thp  offender  nfter  it  shall  hfi.vp  b^f n . 
committed.  The  right  to  punish,  or  to  prevent  crime,  does  in  no 
degree  depend  upon  the  citizenship  of  the  party  who  is  obnoxious 
to  the  law.  The  alien  who  shall  just  have  set  his  foot  upon  the 
soil  of  the  State  is  just  as  subject  to^e  operation  ot  ttTr"ia:w-,  as 
one  who  is  a  native  citizen.  In  this  vei>  (ja^ic,  if  tilhur  Hit  master, 
or  one  of  the  crew  of  the  Emily,  or  one  of  the  passengers  who  were 
landed,  had,  the  next  hour  after  they  came  on  shore,  committed 


900     commerce:   decisions  before  close  of  civil  war. 

iin  offence,  or  indicated  a  disposition  to  do  so,  he  would  have  been 
subject  to  the  criminal  law  of  New  York,  either  by  punishment 
for  the  offence  committed,  or  l)y  prevention  from  its  commission 
where  good  ground  for  apprehension  was  siiown,  by  being  required 
to  enter  into  a  recognizance  with  surety,  either  to  keep  the  peace, 
or  be  of  good  behavior,  as  the  case  might  be;  and  if  he  failed  to 
give  it,  by  UabiUty  to  be  imprisonetl  in  the  discretion  of  the  com- 
petent authority.  Let  us  follow  this  up  to  its  possible  results. 
If  every  officer  and  every  seaman  belonging  to  the  Etrnhj  had 
participated  in  the  crime,  they  would  all  have  been  liable  to  ar- 
rest and  punishment;  although,  thereby,  the  vessel  would  have 
been  .left  without  either  commander  or  crew.  Now  why  is  this? 
For  no  other  reason  than  this,  simply,  that  being  within  the  terri- 
tory and  jurisdiction  of  New  York,  they  were  liable  to  the  laws 
of  that  State,  and  amongst  others,  to  its  criminal  laws;  and  this 
too,  not  only  for  treason,  murder,  and  other  crimes  of  that  de- 
gree of  atrocity,  but  for  the  most  petty  offence  which  can  be 
imagined.  .  .  . 

But  the  instrument  of  navigation,  that  is,  the  vessel,  when  within 
the  jurisdiction  of  the  State,  is  also  liable  by  its  laws  to  execution. 
If  the  State  have  a  right  to  vindicate  its  criminal  justice  Mgainst  the 
officers,  seamen,  ana  passen"gers  who  are  within  its  jurisdiction, 
and  also,  Til  the  adnimistration  of  its  civil  justice^ocause  process 
of  execution  to  be  served  on  thcJ)ody_of  the  very-  .nj^n>iits  of  navi- 
^atTTTTTrTnicralsooii  toe  instrumen  of  navigation,  under  which  it 
may-"bT"sold,  because  they_are__vvitliiii-its  juriv;diction  and  subject 
to  its  laws;  the  same  reasonyprecisely,  equally  subject  the  niaster, 
in^the  case  before  the  court,  to  liability  for  failureTo  comply  with 
the  requisitions  ol  Tlie"  section  of  the  statute  sued  upon.  ^  Each  of 
tliese  laws  depends  upon  the  same  principle  for  its  support;  and 
that  is,  that  it  was  passed  by  the  Statc_of_New_York.  bv  virtue 
of  her  power  to  enact  s'lIclTlaws  forJier,internal  policr  as  it  d^^emed 
best;  which  laws  operate  upon  the  persons  and  thing&jalthm.  her 
irrritnrinl  limits,  find  th^r^f'^r^  within  her  jurisdiction. 

Now  in  relation  to  the  section  in  the  act  immediately  before  us, 
that  is  obviously  passed  with  a  view  to  prevent  her  citizens  from 
being  oppressed  by  the  support  of  multitudes  of  poor  persons,  who 
come  from  foreign  countries  without  possessing  the  means  of  sup- 
porting themselves.  There  can  be  no  mode  in  which  the  power  to 
regulate  internal  police  could  be  more  appropriately  exercised.  .  .  . 

If  the  stronger  powers  under  the  necessity  of  the  case,  by  in- 
spection laws  and  quarantine  laws  to  delay  the  landing  of  a  ship 


NEW  YORK  V.   MILN.  907 

and  cargo,  which  are  the  subjects  of  commerce  and  navigation, 
and  to  remove  or  even  to  destroy  unsound  and  infectious  articles, 
also  the  subject  of  commerce,  can  be  rightfully  exercised;  then, 
.  .  .  it  must  follow  as  a  consequence,  that  powers  less  strong,  such 
as  the  one  in  question,  which  operates  upon  no  subject  either  of 
commerce  or  navigation,  but  which  operates  alone  within  the 
limits  and  jurisdiction  of  New  York  upon  a  person,  at  the  time 
not  even  engaged  in  navigation,  is  still  more  clearly  embraced 
within  the  general  power  of  the  States  to  regulate  their  own 
internal  police,  and  to  take  care  that  no  detriment  come  to  the 
commonwealth. 

We  think  it  as  competent  and  as  necessary  for  a  State  to  provide 
precautionary  measures  against  the  moral  pestilence  of  paupers, 
vagabonds,  and  possibly  convicts;  ^s  it  is  to  guard  against  the 
physical  pestilence,  which  may  arise  from  unsound  and  infectious 
articles  imported,  or  from  a  ship,  the  crew  of  which  may  be  labor- 
ing under  an  infectious  disease.   .  .  . 

We  are,  therefore,  of  opinion,  and  do  direct  it  to  be  certified  to  the 
Circuit  Court  for  the  Southern  District  of  New  York,  that^o  much 
of  the  section  of  the  act  of  the  legislature  of  New  York,  as  applies 
tothe  breaches~assigiied  in  the  declaration,  docs  not  assume  to 
regulate^  commerce~7jct\vecn  the  port  oi'  Aew  York  and  foreign 
ports;  and  that  so  much  of  said  section  is  constitutional.  ' 

'\Ve  express  no  opinion  on  any  other  part  of  the  act  of  the  legis- 
lature of  New  York;  because  no  question  could  arise  in  the  case 
in  relation  to  any  part  of  the  act,  except  that  declared  upon.^ 

Thompson,  J.-  .  .  . 
Story,  J.,  dissenting.  .  .  . 

1  See  Groves  v.  Slaughter,  15  Pet.  449  (1841);  License  Cases,  5  How.  504 
(1847);  Passenger  Cases,  7  How.  283  (1849);  Henderson  v.  Mayor,  92  U.  S. 
259  (1876).  —  Ed. 

2  This  was  a  concurring  opinion.  —  Ed. 


908     commerce:   decisions  before  close  of  civil  war. 

UNITED  STATES  v.   COOMBS. 
Supreme  Court  of  the  United  States.     1838. 

[12  Peters,  72.1  ' 

On  certificate  of  division  of  opinion,  from  the  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  New  York. 

Coombs  was  indicted,  under  the  act  of  March  3,  1825,  for 
having  stolen  at  Rockaway  Beach  a  trunk  and  other  certain 
goods  which  belonged  to  the  ship  Bristol,  then  in  distress  and 
cast  away  on  a  shoal  on  the  coast  of  New  York.  The  judges^ 
were  divided  on  the  question  whether  the  offence  wag^withm  the 
jurisdiction  ot'  the  court? 

Fwl2er;'S!!orney  General,  for  the  United  States;  and  no  counsel 

contra. 

Story,  J.,  delivered  the  opinion  of  the  court.  ... 

The  ninth  section  of  the  act  of  1825,  c.  276,  on  which  the  in- 
dictment in  the  present  case  is  founded,  is  in  the  following  words: 
"That  if  any  person  shall  plunder,  steal,  or  destroy  any  money, 
goods,  merchandise,  or  other  effects  from,  or  belonging  to,  any 
ship  or  vessel,  or  boat,  or  raft  which  shall  be  in  distress,  or  which 
shall  be  wTecked,  lost,  stranded,  or  cast  away  upon  the  sea,  or 
upon  any  reef,  shoal,  bank,  or  rocks  of  the  sea,  or  in  any  place 
within   the   admiralty   or   maritime   jurisdiction   of  the   United 
States;  or  if  any  person  or  persons  shall  wilfully  obstruct  the 
escape  of  any  person  endeavoring  to  save  his  or  her  life  from 
such  ship  or  vessel,  boat  or  raft,  or  the  wreck  thereof;  or  if  any 
person  shall  hold  out  or  show  any  false  light  or  lights,  or  extin- 
guish any  true  light,  with  intention  to  bring  any  ship  or  vessel, 
boat  or  raft,  being  or  sailing  upon  the  sea,  into  danger  or  distress, 
or  shipwreck;  every  person  so  offending,  his  or  their  counsellors, 
aiders  or  abettors,  shall  be  deemed  guilty  of  felony;  and  shall,  on 
conviction  thereof,  be  punished  by  a  fine,  not  exceeding  five  thou- 
sand dollars,  and  imprisomnent  and  confinement  at  hard  labor, 
not  exceeding  ten  years,  according  to  the  aggravation  of  the  of- 
fence."   3  Story's  Laws  of  the  U.  S.  2001.     The  indictment,  as 
has  been  already  stated,  charges  the  offence  to  have  been  com- 
mitted on  Rockaway  Beach;  and  as  is  admitted,  above  high  water 
mark. 

Before  we  proceed  to  the  direct  consideration  of  thejrue  im- 

1  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


UNITED  STATES  V.   COOMBS.  909 

port  and  interpretation  of  this  section,  it  seems  highly  important, 
if  not  indispensable,  to  say  a  few  words  as  to  the  constitutional 
authority  of  Congress  to  pass  the  same.  For  if,ji£on_ajustinter- 
pretation  of  the  terms  thereof,  Congress  haxg^exceeded  their  con- 
stitutToharauihoritYj_jr\viI'P5ecome  our  duty  to  say  so,*  and  to 
certify  our  opinion  on  the  points  submitted  to  uS,  in  favor  oTthe 
defendant.  On  the  other  hand,  if  the  section  admits  ofTwo  in- 
terpretations, each  of  which  is  within  the  constitutional  authority 
of  Congress,  that  ought  to  be  adopted  which  best  conforms  to 
the  terms  and  the  objects  manifested  in  the  enactment,  and  the 
mischiefs  which  it  was  intended  to  remedy.  And  again,  if  the 
section  admits  of  two  interpretations,  one  of  which  brings  it 
within,  and  the  other  presses  it  beyond  the  constitutional  author- 
ity of  Congress*  it  will  become  our  duty  to  adopt  the  former  con- 
struction; because  a  presumption  never  ought  to  be  indulged, 
that  Congress  meant  to  exercise  or  usurp  any  unconstitutional 
authority,  unless  that  conclusion  is  forced  upon  the  court  by 
language  altogether  unambiguous.  And,  accordingly,  the  point 
has  been  presented  to  us  under  this  aspect,  in  the  argument  of 
the  Attorney  General,  on  behalf  of  the  govcrmnent. 

There  are  two  clauses  of  the  Constitution  which  may  properly 
come  under  review,  in  examining  the  constitutional  authority  of 
Congress  over  the  su])ject  matter  of  the  section.  One  is,  the  dele- 
gation of  the  judicial  power,  which  is  declared  to  extend  "to  all 
cases  of  admiralty  and  maritime  jurisdiction."  The  other  is,  the 
delegation  of  the  power  "to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States";  and,  as  connected  with 
these,  the  power  "to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,"  etc. 

In  regard  to  the  first  clause,  the  question  which  arises  is,  what 
is  the  true  nature  and  extent  of  the  admiralty  jurisdiction?  .  .  . 

In  our  judgment,  th(>  authority'  of  Congress,  under  this  claus.^ 
of  the  Constitution,  does  not* extend  to  punish  otfences  aojnmitted 
abo\c  and  beyond  high  water  mark. 

But  we  are  of  opinion.  thaCuprl^r  |hp  ^Iniis;^  rti  th?  Cnn^t^i^u- 
tion  givingj;iQwer,to  rvm ^pqg_^ '  j- f^  rpgi 1 1  q  t p  r»r>m m c^vn^  with  foreign 
nations,  and  among  the  several  States,"  Congress  possess  the 
power  1o  ])unish  ot'feiiees  of  tlie  sort  which  arc^  onumerated^n  the 
ninth  section  of  the  act  of  1S2.5,  now  under  eonsiclerati^n.  The 
])()wei-  to  re.L^uhite  commerce  includes  the  i)ower--4ajieftulate 
na\  iga^lj_e)jj>,  as  connected  with  the  commerce  with  foreign  nations, 
and  among  the  States.    It  was  so  held  and  decided  by  this  court, 


910     commerce:   decisions  before  close  of  civil  war. 

after  the  most  deliberate  consideration,  in  the  case  of  Gibbons  v. 
Oo-den,  9  Whoat.^  189  to  198.    It  does  not  stop  at  the  mere  l)ound- 
ary  line  of  a  State;  nor  is  it  confined  to  acts  done  on  the  water,  or 
in  the  necessary  course  of  the  navigation  thereof.    It  extends  to 
such  acts,  done  on  land,  which  interfere  with,  ol )8t ruct^ jy  preveii^. 
the  due  exercise  of  the  power  to  regulate  coiiunefce  and  naviga- 
fJnTT~mth  foreign  nations.  aildainuiltiTre  States.     Any  offence 
which  tlms  interieres  wifTi,  ob'stfiicts,  or  prevents  such  commerce 
and  navigation,  though  done  on  land,  may  be  punished  l)y  Con- 
gress, under  its  general  authority  to  make  all  laws  necessary  and 
proper  to  execute  their  delegated  constitutional  powers.    No  one 
can  doubt  that   the  various  offences   enumerated  in  the  ninth 
section  of  the  act  are  all  of  a  nature  which  tend  essentially  to 
obstruct,  prevent,  or  destroy  the  due  operations  of  commerce 
and  navigation  with   foreign  nations,   and   among   the   several 
States.    CongTcss  have,  in  a  great  variety  of  cases,  acted  upon  this 
interpretation  of  the  Constitution,  from  the  earliest  period  after 
the  Constitution;  as  will  be  abundantly  seen  by  the  punishment 
of  certain  offences  on  land,  connected  with  i^iracies  and  felonies 
on  the   higii   seas,   in  the   act  of   1790,  c.  36,  §  10  and  §  11; 
and  in  the  acts  for  regulation  of  commerce  and  navigation,  and 
for  the  collection  of  the  revenue,  pa.ssed  from  time  to  time:  in 
which  many  of  the  penalties,  forfeitures,  and  offences  provided 
for,  are  such  as  are,  or  may  be  done  on  land;  and  yet  which  arise 
from  the  power  to  regulate  commerce  and  navigation,   and  to 
levy  and  collect  duties.     The  ship  registry  act  of   1792,  c.  45; 
the  act  of  1798,  c.  52,  for  the  enrolment  and  licensing  of  vessels 
in  the  coasting  trade  and  fisheries;  the  act  of  1790,  c.  102,  for 
the  regulation  and  government  of  seamen  in  the  merchants'  s  ?rv- 
ice;  and  the  revenue  collection  act,  from  the  act  of  1789,  c.  5, 
to  that  of  1799,  c.  128,  afford  many  pointed  illustrations.    We 
do  not  hesitate,  therefore,  to  say,  that   in   our  judgment  the 
present  section  is  perfectly  within  the  constitutional ^uthorjty  of 
Congress~m~cimQt]_althoiigfaL^^  maY^^ave 

been  committed  on  land,  and  above  high  water  mark.  .  .  . 

Our  opinion  is  that  it  be  certified  to  the  Circuif  Court  for  the 
Southern  District  of  New  York  that  the  offence  committed^was 
within  the  jurisdiction  of  that  court. 


NATHAN   V.   LOUISIANA.  911 

NATHAN   V.   LOUISIANA. 
Supreme  Court  of  the  United  States.     1850. 

[8  Hoioard,  73.]  i 

Error  to  the  Supreme  Court  of  Louisiana. 

In  a  District  Court  of  the  State  action  was  brought  for  the  an- 
nual tax,  for  two  years,  due  under  the  Louisiana  act  of  Mar.  26, 
1842,  which  provided  that  "each  money  or  exchange  broker  shall 
hereafter  pay  an  annual  tax  of  S250."  The  defence  was  that  the 
defendant's  sole  business  was  buying  and  selhng  foreign  bills  of 
exchange,  which  are  instruments  of  commerce,  and  that  the  tax 
is  repugnant  to  the  power  of  Congress  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States.  Judgment  was 
rendered  for  S500,  and  on  appeal  was  affirmed  by  the  Supreme 
Court  of  the  State. 

Wilde,  for  plaintiff  in  error;  and  Coxe,  contra. 

McLean,  J.,  dehvercd  the  opinion  of  the  court.  .  .  . 

This  is  not  a  tax  on  bills  of  exchange.  Under  the  law,  every 
person  is  free  to  buy  or  sell  bills  of  exchange,  as  may  be  necessary 
in  his  lousiness  transactions;  but  he  is  required  to  pay  the  tax  if 
he  engage  in  the  business  of  a  money  or  an  exchange  broker. 

The  right  of  a  State  to  tax  its  own  citizens  for  the  prosecution 
of  any  particular  business  or  profession,  within  the  State,  has  not 
been  doubted.  And  we  find  that  in  every  State  money  or  ex- 
change brokers,  venders  of  merchandise  of  our  own  or  foreign 
manufacture,  retailers  of  ardent  spirits,  tavern-keepers,  auction- 
eers, those  who  practise  the  learned  professions,  and  every  de- 
scription of  property,  not  exempted  by  law,  are  taxed. 

As  an  exchange  broker,  the  defendant  had  a  right  to  deal  in 
every  description  of  paper,  and  in  every  kind  of  money;  but  it 
seems  his  business  was  hmited  to  foreign  bills  of  exchange. 
Money  is  admitted  to  be  an  instrument  of  commerce,  and  so  is 
a  bill  of  exchange;  and  upon  this  ground,  it  is  insisted  that  a 
tax  upon  an  exchange  broker  is  a  tax  upon  the  instruments  of 
commerce. 

What  is  there  in  the  products  of  agriculture,  of  mechanical 
ingenuity,  of  manufactures,  which  may  not  become  the  means  of 
commerce?  And  is  the  vender  of  these  products  exempted  from 
State  taxation,  because  they  may  be  thus  used?    Is  a  tax  upon  a 

*  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


912     commerce:   decisions  before  close  of  civil  war. 

ship,  as  property,  which  is  admitted  to  be  an  instrument  of 
commerce,  prohibited  to  a  State?  May  it  not  tax  the  business 
of  ship-building,  the  same  as  the  exercise  of  any  other  mechanical 
art?  and  also  the  traffic  of  ship-chandlers,  and  others,  who  fur- 
nish the  cargo  of  the  ship  and  the  necessarj'  supphes?  There  can 
be  but  one  answer  to  these  questions.  No  one  can  claim  an  ex- 
emption from  a  general  tax  on  his  business,  within  the  State,  on 
the  ground  that  the  products  sold  may  be  used  in  commerce. 

No  State  can  tax  an  export  or  an  import  as  such,  except  under 
the  limitations  of  the  Constitution.  But  before  the  article 
becomes  an  export,  or  after  it  ceases  to  be  an  import,  by  being 
mingled  with  other  property  in  the  State,  it  is  a  subject  of  taxa- 
tion by  the  State.  A  cotton-broker  may  be  required  to  pay  a 
tax  upon  his  business,  or  by  way  of  license,  although  he  may  buy 
and  sell  cotton  for  foreign"  exportation. 

A  bill  of  exchange  is  neither  an  export  nor  an  import.  It  is 
not  transmitted  through  the  ordinary  channels  of  commerce,  but 
through  the  mail.  It  is  a  note  merely  ordering  the  payment  of 
money,  which  may  be  negotiated  by  indorsement,  and  the  liabil- 
ity of  the  names  that  are  on  it  depends  upon  certain  acts  to  be 
done  by  the  holder,  when  it  becomes  payable. 

The  dealer  in  bills  of  exchange  requires  capital  and  credit. 
He  generally  draws  the  instrument,  or  it  is  drawn  at  his  instance, 
when  he  is  desirous  of  purchasing  it.  The  bill  is  worth  more  or 
less,  as  the  rate  of  exchange  shall  be  between  the  place  where  it 
is  drawn  and  where  it  is  made  payable.  This  rate  is  principally 
regulated  by  the  expense  of  transporting  the  specie  from  the  one 
place  to  the  other,  influenced  somewhat  by  the  demand  and 
supply  of  specie.  Now  the  individual  who  uses  his  money  and 
credit  in  buying  and  selling  bills  of  exchange,  and  who  thereby 
reahzes  a  profit,  may  be  taxed  by  a  State  in  proiwrtion  to  his 
income,  as  other  persons  are  taxed,  or  in  the  form  of  a  Ucense. 
He  is  not  engaged  in  commerce,  but  in  supplying  an  instrument 
of  commerce.  He  is  less  connected  with  it  than  the  ship-builder, 
without  whose  labor  foreign  commerce  could  not  be  carried 
on.  .  .  . 

For  the  purposes  of  revenue,  the  Federal  government  has 
taxed  bills  of  exchange,  foreign  and  domestic,  and  promissory 
notes,  whether  issued  by  individuals  or  banks.  Now  the  Federal 
government  can  no  more  regulate  the  commerce  of  a  State,  than 
a  State  can  regulate  the  commerce  of  the  Federal  government; 
and  domestic  bills  or  promissory  notes  are  as  necessary  to  the 


COOLEY   V.   BOARD   OF  WARDENS   OF   PORT   OF   PHILADELPHIA.     913 

commerce  of  a  State,  as  foreign  bills  to  the  commerce  of  the 
Union.  And  if  a  tax  on  an  exchange  broker,  who  deals  in  foreign 
bills,  be  a  regulation  of  foreign  commerce,  or  commerce  among 
the  States,  much  more  would  a  tax  upon  State  paper,  by  Congress, 
be  a  tax  on  the  commerce  of  a  State. 

The  taxing  power  of  a  State  is  one  of  its  attributes  of  sover- 
eignty. And  where  there  has  been  no  compact  with  the  Federal 
government,  or  cession  of  jurisdiction  for  the  purposes  specified 
in  the  Constitution,  this  power  reaches  all  the  property  and  busi- 
ness within  the  State,  which  are  not  properly  denominated  the 
means  of  the  general  government;  and,  as  laid  down  by  this  court, 
it  may  be  exercised  at  the  discretion  of  the  State.  The  only 
restraint  is  found  in  the  responsibility  of  the  members  of  the 
legislature  to  their  constituents. 

If  this  power  of  taxation  by  a  State  within  its  jurisdiction  may 
be  restricted  beyond  the  limitations  stated,  on  the  ground  that 
the  tax  may  have  some  indirect  bearing  on  foreign  commerce, 
the  resources  of  a  State  may  be  thereby  essentially  impaired. 
But  State  power  does  not  rest  on  a  basis  so  undefinable.  What- 
ever exists  within  its  territorial  limits  in  the  form  of  property, 
real  or  personal,  with  the  exceptions  stated,  is  subject  to  its  laws; 
and  also  the  numberless  enterprises  in  which  its  citizens  may  be 
engaged.  These  are  subjects  of  State  regulation  and  State  taxa- 
tion, and  there  is  no  Federal  power  under  the  Constitution  which 
can  impair  this  exercise  of  State  sovereignty. 

We  think  the  law  of  Louisiana  imposing  the  tax  in  question  is 
not  repugnant  to  any  power  of  the  Federal  government,  and  con- 
sequently the  judgment  of  the  Supreme  Court  of  the  State  is 
afl&rmed. 


COOLEY  V.   BOARD  OF  WARDENS  OF  THE  PORT  OF 
PHILADELPHIA. 

Supreme  Court  of  the  United  States.     1851. 
[12  Howard,  299.]  ^ 

Error  to  the  Supreme  Court  of  Pennsylvania. 

A  Pennsylvania  statute  of  Mar.  2,  1803,  entitled  "An  act  to 
establish  a  Board  of  Wardens  for  the  port  of  Philadelphia,"  enacted 
that  "every  ship  or  vessel  arriving  from  or  bound  to  any  foreign 
1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


914     commerce:   decisions  before  close  of  civil  war. 


port  or  place,  and  every  ship  or  vessel  of  the  burden  of  75  tons 
or  more,  sailing  from  or  bound  to  any  port  not  within  the  river 
Delaware,  shall  be  obliged  to  receive  a  pilot,"  and  that  "if  Uie, 
master  .  .  .  shall  refuse  or  neglect  toJakejLjdlgt,  the  ma.ster, 
owncTor T^onfeigfieP  of  sucTT vessel  sHafTforfeit  andjiayjoj he 

warden  .  .  .  the  half  pilotage^^_^_JtolTje2nH^:Cni^^ 

Under 


tl£^dierofT[g|reiiepZIIii^^  ^  iluiilrcn. 

this  statute  two  actions  for  half-pilotage  were  brought  in  a  magis- 
trate's court;  and,  on  judgment  against  the  defendant,  the  con- 
signee of  the  two  vessels,  appeals  were  taken  to  the  Common  Pleas 
Court  for  the  City  and  County  of  Philadelphia.  In  one  case  the 
declaration  was  demurred  to;  and  in  the  other  there  were  pleas 
that  the  vessel  was  engaged  in  the  coasting  trade  under  a  coasting 
license  from  the  United  States  and  that  it  was  bound  from  the 
port  of  Philadelphia  to  the  port  of  New  York.  Iii_each_case 
jiuljnnont,  w.-is  frivou  affiiinst  the  (leftJidaia-amUlMHudgiufcaLvvas 
nf^^^iT^  by  the_Supj:eme-CaurLpf  Pcnns>dvania. 

Morris  and  Tyaon,   for  plaintiff  in  error;    and  Campbell  and 
Dallas,  contra. 

Curtis,  J.,  delivered  the  opinion  of  the  court.  .  .  . 
We  think  this  particular  regulation   concerning  halfj2ilot age 
fees,  is  an  appropriate  parrpTii  geiural  system  orregulations  of 
thlsjulject^     Testing  it  by  the  practice  of  commercial  States 
ancT^ountnes  legislating  on  this  subject,  we  find  it  has  u-s^iall^ 
been  deemed  necessary  to  make  similar  provisions.     Numerous 
laws  of  this^nd  are  cited  in  the  learned  argumeiit  of  the  counsel 
for  the  defendant  in  error;  and  their  fitness,  as  a  part  of  a  system 
of  pilotage,  in  many  places,  may  be  inferred  from  their  existence 
in  so  many  different  States  and  countries.    Like  other  laws  they 
are  framed  to  meet  the  most  usual  cases,  qiice  frequentius  accidunt; 
they  rest  upon  the  propriety  of  securing  lives  and  property  ex- 
DosecT  to  tlie  perils  of  a  dangerous  navigation,  by  taking  on  board 
a-pgfson  peculiarly  skilled  to  Olicounler^or  avoid  them;    upon 
the^oTTcy  oi'  discouraging  the  coimWUUders  oi  vessels  from  re- 
fusing to  receive  such  persons  on  board  at  the  proper  times  and 
places;    and  upon  the  expediency,  and  even  intrinsic  justice,  of 
not  suffering  those  who  have  incurred  labor,  and  expense,  and 
danger,  to  place  themselves  in  a  position  to  render  important 
service  generally  necessary,  to  go  unrewarded,  because  the  master 
of  a  particular  vessel  either  rashly  refuses  their  proffered  assist- 
ance, or,  contrary  to  the  general  experience,  does  not  need  it. 
There  are  many  cases,  in  which  an  offer  to  perform,  accompanied 


COOLEY   V.   BOARD   OF  WARDENS   OF   PORT  OF   PHILADELPHIA.     915 

by  present  ability  to  perform,  is  deemed  by  law  equivalent  to  per- 
formance The  laws  of  commercial  States  and  countries  have 
made  an  offer  of  pilotage-service  one  of  those  cases;  and  we  cannot 
pronounce  a  law  which  does  this,  to  be  so  far  removed  from  the 
usual  and  fit  scope  of  laws  for  .the  regulation  of  pilots  and  pilotage 
as  to  be  deemed,  for  this  cause,  a  covert  attempt  to  legislate  upon 
another  subject  under  the  appearance  of  legislating  on  this  one 

It  IS  urged  that  the  second  section  of  the  act  of  the  Legislature 
o    Pennsylvania,   of  the   11th  of  June,    1832,  proves  that  the 
btate  had  other  objects  in  view  than  the  regulation  of  pilotage 
That  section  is  as  follows: 

"And  be  it  further  enacted,  by  the  authority  aforesaid,  that 
from  and  after  the  first  day  of  July  next,  no  health-fee  or  half- 
pilotage  shall  be  charged  on  any  vessel  engaged  in  the  Pennsyl- 
vania coal  trade." 

It  must  be  remembered,  that  the  fair  objects  of  a  law  imposing 
half-pilotage  when  a  pilot  is  not  received,  may  be  secured,  and 
at  the  same  time  some  classes  of  vessels  exempted  from  such 
charge.  Thus  the  very  section  of  the  act  of  1803,  now  under 
consideration,  does  not  apply  to  coasting  vessels  of  less  burden 
than  seventy-five  tons,  nor  to  those  bound  to,  or  sailing  from,  a 
port  in  the  river  Delaware.  ... 

Nor  do  we  consider  that  the  appropriation  of  the  sums  re- 
ceived under  this  section  of  the  act,  to  the  use  of  the  society  for 
the  relief  of  distressed  and  decayed  pilots,  their  widows  and 
children,  has  any  legitimate  tendency  to  impress  on  it  the  charac- 
ter of  a  revenue  law.  Whether  these  sums  shall  go  directly  to  the 
use  of  the  individual  pilots  by  whom  the  Service  is  tendered,  or 
shall  form  a  common  fund,  to  be  administered  by  trustees  for  the 
benefit  of  such  pilots  and  their  families  as  may  stand  in  peculiar 
need  of  it,  is  a  matter  resting  in  legislative  discretion,  in  the 
proper  exercise  of  which  the  pilots  alone  are  interested. 

For  these  reasons,  we  cannot  yield  our  assent  to  the  argument, 
that  this  provision  of  law  is  in  conflict  with  the  second  and  third 
clauses  of  the  tenth  section  of  the  first  article  of  the  Constitution, 
which  prohibit  a  State,  without  the  assent  of  Congress,  from 
laying  any  imposts  or  duties,  on  imports  or  exports,  or 
tonnage.  .  .  . 

It  is  further  objected,  that  this  law  is  repugnant  to  the  fifth 
clause  of  the  ninth  section  of  the  first  article  of  the  Constitution, 
viz.  —  "No  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue,  to  the  ports  of  one  State  over  those  of  another; 


OK)     commerce:   decisions  before  close  of  civil  war. 

nor  shall  vessels,  to  or  from  one  State,  be  obliged  to  enter,  clear, 
or  pay  duties  in  another." 

But,  as  already  stated,  pilotage-fees  are  not  duties  within  the 
meaning  of  the  Constitution;  and,  certainly,  Pennsylvania  does 
not  give  a  preference  to  the  port  of  Philadelphia,  by  requiring  the 
masters,  owners,  or  consignees  of  vessels  sailing  to  or  from  that 
port,  to  pay  the  charges  imposed.  .  .  . 

In  addition  to  what  has  been  said  respecting  each  of  these  con- 
stitutional objections  to  this  law,  it  may  be  observed,  that  similar 
laws  have  existed  and  been  practised  on  in  the  States  since  the 
adoption  of , the  Federal  Constitution;  that,  by  the  act  of  the  7th 
of  August,  1789  (1  Stat,  at  Large,  54),  Congress  declared  that  all 
pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the  United 
States,  shall  continue  to  be  regulated  in  conformity  with  the  exist- 
ing laws  of  the  States,  &c.;  and  that  this  contemporaneous  con- 
struction of  the  Constitution  since  acted  on  with  such  uniformity 
in  a  matter  of  much  public  interest  and  importance,  is  entitled 
to  great  weight,  in  determining  whether  such  a  law  is  repugnant 
to  the  Constitution,  as  levying  a  duty  not  uniform  throughout 
the  United  States,  or,  as  giving  a  preference  to  the  ports  of  one 
State  over  those  of  another,  or,  as  obliging  vessels  to  or  from  one 
State  to  enter,  clear,  or  pay  duties  in  another.  Stuart  v.  Laird, 
1  Cranch,  299;  Martin  v.  Hunter,  1  Wheat.  304;  Cohens  v.  The 
Commonwealth  of  Virginia,  G  Wheat.  264;  Prigg  v.  The  Com- 
monwealth of  Pennsylvania,  16  Pet.  621. 

The  opinion  of  the  court  is,  that  the  law  now  in  question  is 
not  repugnant  to  either  of  the  above-mentioned  clauses  of  the 
Constitution. 

It  remains  to  consider  the  objection,  that  it  is  repugnant  to  the 
third  clause  of  the  eighth  section  of  the  first  article.  "The 
Congress  shall  have  power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  States,  and  with  the  Indian 
tribes." 

That  the  power  to  regulate  commerce  includes  the  regulation 
of  navigation,  we  consider  settled.  And  when  we  look  to  the 
nature  of  the  service  performed  by  pilots,  to  the  relations  which 
that  service  and  its  compensations  bear  to  navigation  between 
the  several  States,  and  between  the  ports  of  the  United  States 
and  foreign  countries,  we  are  brought  to  the  conclusion,  that 
the  regulation  of  the  qualifications  of  pilots,  of  the  modes  and  times 
of  offering  and  rendering  their  services,  of  the  responsibilities 
which  shall  rest  upon  them,  of  the  powers  they  shall  possess,  of 


COOLEY  V.   BOARD   OF  WARDENS   OF   PORT   OF   PHILADELPHIA.     917 

the  compensation  they  may  demand,  and  of  the  penalties  by 
which  their  rights  and  duties  may  be  enforced,  do  constitute 
regulations  of  navigation,  and  consequently  of  commerce,  within 
the  just  meaning  of  this  clause  of  the  Constitution. 

The  power  to  regulate  navigation  is  the  power  to  prescribe 
rules  m  conformity  with  which  navigation  must  be  carried  on. 
It  extends  to  the  persons  who  conduct  it,  as  well  as  to  the  instru- 
ments used.  Accordingly,  the  first  Congress  assembled  under  the 
Constitution  passed  laws,  requiring  the  masters  of  ships  and  vessels 
of  the  United  States  to  be  citizens  of  the  United  States,  and  estab- 
lished many  rules  for  the  government  and  regulation  of  officers 
and  seamen.     1  Stat,  at  L.  131. 

And  if  Congress  has  power  to  regulate  the  seamen  who  assist 
the  pilot  in  the  management  of  the  vessel,  a  power  never  denied, 
we  can  perceive  no  valid  reason  why  the  pilot  should  be  beyond 
the  reach  of  the  same  power,  .  . 

Nor  should  it  be  lost  sight  of,  that  this  subject  of  the  regula- 
tion of  pilots  and  pilotage  has  an  intimate  connection  with,  and 
an  important  relation  to,  the  general  subject  of  commerce  with 
foreign  nations  and  among  the  several  States,  over  which  it  was 
one  main  object  of  the  Constitution  to  create  a  national  control. 
Conflicts  between  the  laws  of  neighboring  States,  and  discrimina- 
tions favorable  or  adverse  to  commerce  with  particular  foreign 
nations,  might  be  created  by  State  laws  regulating  pilotage,  deeply 
affecting  that  equality  of  commercial  rights,  and  that  freedom 
from  State  interference,  which  those  who  formed  the  Constitu- 
tion were  so  anxious  to  secure,  and  which  the  experience  of  more 
than  half  a  century  has  taught  us  to  value  so  highly.  The  appre- 
hension of  this  danger  is  not  speculative  merely.  For,  in  1837, 
Congress  actually  interposed  to  relieve  the  commerce  of  the 
country  from  serious  embarrassment,  arising  from  the  laws  of 
different  States,  situate  upon  waters  which  are  the  boundary 
between  them.  This  was  done  by  an  enactment  of  the  2d  of 
March,  1837,  in  the  following  words: 

"Be  it  enacted,  that  it  shall  and  may  be  lawful  for  the  master 
or  commander  of  any  vessel  coming  into  or  going  out  of  any  port 
situate  upon  waters  which  are  the  boundary  between  two  States, 
to  employ  any  pilot  duly  licensed  or  authorized  by  the  laws  of 
cither  of  the  States  bounded  on  the  said  waters,  to  pilot  said  vessel 
to  or  from  said  port,  any  law,  usage,  or  custom,  to  the  contrary, 
notwithstanding." 

The  act  of  1789  (1  Stat,  at  L.  54),  already  referred  to,  contains 


918     commerce:   decisions  before  close  of  civil  war. 

a  clear  legislative  exposition  of  the  Constitution  l)y  the  first 
Congress,  to  the  effect  that  the  power  to  regulate  pilots  was  con- 
ferred on  Congress  !)y  the  Constitution;  as  does  also  the  act  of 
March  the  2d,  1837,  the  terms  of  which  have  just  been  given. 
The  weight  to  be  allowed  to  this  contemporaneous  construction, 
and  the  practice  of  Congress  under  it,  has,  in  another  connection, 
been  adverted  to.  And  a  majority  of  the  court  are  of  opinion, 
that  a  regulation  of  pilots  is  a  regulation  of  commerce,  within  the 
grant  to  Congress  of  the  commercial  power,  contained  in  the  third 
clause  of  the  eighth  section  of  the  first  article  of  the  Constitution. 

It  becomes  necessary,  therefore,  to  consider  whether  this  law 
of  Pennsylvania,  Ix'ing  a  regulation  of  commerce,  is  valid. 

The  act  of  Congress  of  the  7th  of  August,  1789,  §  4,  is  as  follows: 

"That  all  pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports 
of  the  United  States  shall  continue  to  be  regulated  in  conform- 
ity with  the  existing  laws  of  the  States,  respectively,  wherein 
such  pilots  may  be,  or  with  such  laws  as  the  States  may  respec- 
tively hereafter  enact  for  the  purpose,  until  further  legislative 
provision  shall  be  made  by  Congress." 

If  the  law  of  Pennsylvania,  now  in  question,  had  been  in  exist- 
ence at  the  date  of  this  act  of  Congress,  we  might  hold  it  to 
have  been  adopted  by  Congress,  and  thus  made  a  law  of  the 
United  States,  and  so  valid.  Because  this  act  does,  in  effect, 
give  the  force  of  an  act  of  Congress,  to  the  then  existing  State 
laws  on  this  subject,  so  long  as  they  should  continue  unrepealed 
by  the  State  which  enacted  them. 

But  the  law  on  which  these  actions  are  founded  was  not  enacted 
till  1803.  What  effect  then  can  be  attributed  to  so  much  of  the 
act  of  1789,  as  declares,  that  pilots  shall  continue  to  be  regulated 
in  conformity,  ''with  such  laws  as  the  States  may  respectively 
hereafter  enact  for  the  purpose,  until  further  legislative  provision 
shall  be  made  by  Congress"? 

If  the  States  were  divested  of  the  power  to  legislate  on  this 
subject  by  the  grant  of  the  commercial  power  to  Congress,  it  is 
plain  this  act  could  not  confer  upon  them  power  thus  to  legislate. 
If  the  Constitution  excluded  the  States  from  making  any  law  regu- 
lating commerce,  certainly  Congress  cannot  regrant,  or  in  any 
manner  reconvey  to  the  States  that  power.  And  yet  this  act  of 
1789  gives  its  sanction  only  to  laws  enacted  by  the  States.  This 
necessarily  implies  a  constitutional  power  to  legislate;  for  only 
a  rule  created  by  the  sovereign  power  of  a  State  acting  in  its  legis- 
lative capacity,  can  be  deemed  a  law,  enacted  by  a  State;   and  if 


COOLEY  V.   BOARD   OF  WARDENS  OF  PORT  OF  PHILADELPHIA.     919 

the  State  has  so  limited  its  sovereign  power  that  it  no  longer 
extends  to  a  particular  subject,   manifestly  it  cannot,   in  any 
proper  sense,  be  said  to  enact  laws  thereon.     Entertaining  these 
views  we.  are  brought  directly  and  unavoidably  to  the  considera- 
tion of  the  question,  whether  the  grant  of  the  commercial  power 
to  Congress,  did  per  se  deprive  the  States  of  all  power  to  regulate 
pilots.    This  question  has  never  been  decided  by  this  court*^  nor, 
in  our  judgment,  has  any  case  depending  upon  all  the  considera- 
tions which  must  govern  this  one,  come  before  this  court.     The 
grant  of  commercial  power  to   Congress  does  not   contain  any 
terms  which   expressly  exclude  the  States  from  exercising  an 
authority  over  its  subject-matter.    If  they  are  excluded  it  must  be 
because  the  nature  of  the  power,  thus  granted  to  Congress,  re- 
quires that  a  similar  authority  should  not  exist  in  the  States'.    If 
it  were  conceded  on  the  one  side,  that  the  nature  of  this  power, 
like  that  to  legislate  for  the  District  of  Columbia,  is  absolutely 
and  totally  repugnant  to  the  existence  of  sunilar  power  in  the 
States,  probably  no  one  would  deny  that  the  grant  of  the  power 
to  Congress,  as  effectually  and  perfectly  excludes  the  States  from 
all  future  legislation  on  the  subject,  as  if  express  words  had  been 
used  to  exclude  them.    And  on  the  other  hand,  if  it  were  admitted 
that  the  existence  of  this  power  in  Congress,  like  the  power  of 
taxation,  is  compatible  with  the  existence  of  a  similar  power  in  the 
States,  then  it  would  be  in  conformity  with  the  contemporary 
exposition  of  the  Constitution  (Federalist,  No.  32)  and  with  the 
judicial  construction,  given  from  time  to  time  by  this  court, 
after  the  most  deliberate  consideration,  to  hold  that  the  mere 
grant  of  such  a  power  to  Congress,  did  not  imply  a  prohibition  on 
the  States  to  exercise  the  same  power;  that  it  is  not  the  mere  exist- 
ence of  such  a  power,  but  its  exercise  by  Congress,  which  may  be 
incompatible  with  the  exercise  of  the  same  power  by  the  States, 
and  that  the  States  may  legislate  in  the  absence  of  congressional 
regulations.     Sturges  v.   Crowninshield,   4   Wheat.    193;    Moore 
V.  Houston,  5  Wheat.  1;  Wilson  v.  Blackbird  Creek  Co.,  2  Peters 
251. 

The  diversities  of  opinion,  therefore,  which  have  existed  on 
this  subject,  have  arisen  from  the  different  views  taken  of  the 
nature  of  this  power.  But  when  the  nature  of  a  power  like  this 
is  spoken  of,  when  it  is  said  that  the  nature  of  the  power  re- 
quires that  it  should  be  exercised  exclusively  by  Congress,  it 
must  be  intended  to  refer  to  the  subjects  of  that  power,  and  to 
say  they  are  of  such  a  nature  as  to  require  exclusive  legislation 


920     commerce:   decisions  before  close  of  civil  war. 

by  Congress.  Now  the  power  to  regulate  commerce,  embraces 
a  vast  field,  containing  not  only  many,  but  exceedingly  various 
subjects,  quite  unlike  in  their  nature;  some  imperatively  demand- 
ing a  single  uniform  rule,  operating  equally  on  the  commerce  of 
the  United  States  in  every  port;  and  some,  like  the  subject  now 
in  question,  as  imperatively  demanding  that  diversity,  which 
alone  can  meet  the  local  necessities  of  navigation. 

Either  absolutely  to  affirm,  or  deny  that  the  nature  of  this  power 
requires  exclusive  legislation  by  Congress,  is  to  lose  sight  of  the 
nature  of  the  subjects  of  this  power,  and  to  assert  concerning  all 
of  them,  what  is  really  applicable  but  to  a  part.  Whatever  sub- 
jects of  this  power  are  in  their  nature  national,  or  admit  only  of 
one  uniform  system,  or  plan  of  regulation,  may  justly  be  said  to 
be  of  such  a  nature  as  to  require  exclusive  legislation  by  Congress. 
That  this  cannot  be  affirmed  of  laws  for  the  regulation  of  pilots 
and  pilotage  is  plain.  The  act  of  1789  contains  a  clear  and  au- 
thoritative declaration  by  the  first  Congress,  that  the  nature  of 
this  subject  is  such,  that  until  Congress  should  find  it  necessary 
to  exert  its  power,  it  should  be  left  to  the  legislation  of  the  States; 
that  it  is  local  and  not  national;  that  it  is  likely  to  be  the  best 
provided  for,  not  by  one  system,  or  plan  of  regulations,  but  by  as 
many  as  the  legislative  discretion  of  the  several  States  should 
deem  applicable  to  the  local  peculiarities  of  the  ports  within 
their  limits. 

Viewed  in  this  light,  so  much  of  this  act  of  1789  as  declares  that 
pilots  shall  continue  to  be  regulated  "by  such  laws  as  the  States 
may  respectively  hereafter  enact  for  that  purpose,"  instead  of 
being  held  to  be  inoperative,  as  an  attempt  to  confer  on  the  States 
a  power  to  legislate,  of  which  the  Constitution  had  deprived  them, 
is  allowed  an  appropriate  and  important  signification.  It  mani- 
fests the  understanding  of  Congress,  at  the  outset  of  the  govern- 
ment, that  the  nature  of  this  subject  is  not  such  as  to  require  its 
exclusive  legislation.  The  practice  of  the  States,  and  of  the 
National  government,  has  been  in  conformity  with  this  declara- 
tion, from  the  origin  of  the  National  government  to  this  time; 
and  the  nature  of  the  subject  when  examined,  is  such  as  to  leave 
no  doubt  of  the  superior  fitness  and  propriety,  not  to  say  the  ab- 
solute necessity,  of  different  systems  of  regulation,  drawTi  from 
local  knowledge  and  experience,  and  conformed  to  local  wants. 
How  then  can  we  say,  that  by  the  mere  grant  of  power  to  regulate 
commerce,  the  States  are  deprived  of  all  the  power  to  legislate  on 
this  subject,  because  from  the  nature  of  the  power  the  legislation 


COOLEY   V.    BOARD   OF  WARDENS   OF   PORT  OF   PHILADELPHIA.     921 

of  Congress  must  be  exclusive.  This  would  be  to  affirm  that  the 
nature  of  the  power  is  in  any  case,  something  different  from  the 
nature  of  the  subject  to  which,  in  such  case,  the  power  extends, 
and  that  the  nature  of  the  power  necessarily  demands,  in  all  cases, 
exclusive  legislation  by  Congress,  while  the  nature  of  one  of  the 
subjects  of  that  power,  not  only  does  not  require  such  exclusive 
legislation,  but  may  be  best  provided  for  by  many  different  sys- 
tems enacted  by  the  States,  in  conformity  wath  the  circumstances 
of  the  ports  wdthin  their  limits.  In  construing  an  instrument 
designed  for  the  formation  of  a  government,  and  in  determining 
the  extent  of  one  of  its  important  grants  of  power  to  legislate,  we 
can  make  no  such  distinction  between  the  nature  of  the  power  and 
the  nature  of  the  subject  on  which  that  power  was  intended  prac- 
tically to  operate,  nor  consider  the  grant  more  extensive  by  affirm- 
ing of  the  power,  what  is  not  true  of  its  subject  now  in  question. 

It  is  the  opinion  of  a  majority  of  the  court  that  the  mere  grant 
to  Congress  of  the  power  to  regulate  commerce,  did  not  deprive 
the  States  of  power  to  regulate  pilots,  and  that  although  Congress 
has  legislated  on  this  subject,  its  legislation  manifests  an  intention, 
with  a  single  exception,  not  to  regulate  this  subject,  but  to  leave 
its  regulation  to  the  several  States.  To  these  precise  questions, 
which  are  all  we  are  called  on  to  decide,  this  opinion  must  be  under- 
stood to  be  confined.  It  does  not  extend  to  the  question  what  other 
subjects,  under  the  commercial  power,  are  A^-ithin  the  exclusive 
control  of  Congress,  or  may  be  regulated  by  the  States  in  the  ab- 
sence of  all  congressional  legislation;  nor  to  the  general  question 
how  far  any  regulation  of  a  subject  by  Congress,  may  be  deemed 
to  operate  as  an  exclusion  of  all  legislation  by  the  States  upon  the 
same  subject.  We  decide  the  precise  questions  before  us,  upon 
what  we  deem  sound  principles,  applicable  to  this  particular 
subject  in  the  state  in  which  the  legislation  of  Congress  has  left 
it.    We  go  no  further. 

We  have  not  adverted  to  the  practical  consequences  of  holding 
that  the  States  possess  no  power  to  legislate  for  the  regulation 
of  pilots,  though  in  our  apprehension  these  would  be  of  the  most 
serious  importance.  For  more  than  sixty  years  this  subject  has 
been  acted  on  by  the  States,  and  the  systems  of  some  of  them 
created  and  of  others  essentially  modified  during  that  period. 
To  hold  that  pilotage  fees  and  penalties  demanded  and  received 
during  that  time.  Have  been  illegally  exacted,  under  color  of  void 
laws,  would  work  an  amount  of  mischief  which  a  clear  conviction 
of  constitutional  duty,  if  entertained,  must  force  us  to  occasion, 


922     commerce:   decisions  befoue  close  of  civil  war. 

but  which  could  he  vitnved  by  no  just  mind  withinit  deep  regret. 
Nor  would  the  mischief  l)e  limited  to  the  past.  If  Congress  were 
now  to  pass  a  law  adopting  the  existing  State  laws,  if  enacted 
without  authority,  and  in  violation  of  the  Constitution,  it  would 
seem  to  us  to  be  a  new  and  questionable  mode  of  l(>gislation. 

If  the  grant  of  commercial  power  in  the  Constitution  has  de- 
prived the  States  of  all  power  to  legislate  for  the  regulation  of 
pilots,  if  their  laws  on  this  subject  are  mere  usurpations  upon  the 
exclusive  power  of  the  general  government,  and  utterly  void,  it 
may  be  doubted  whether  Congress  could,  with  propriety,  recog- 
nize them  as  laws,  and  adopt  them  as  its  own  acts;  and  how  are 
the  legislatures  of  the  States  to  proceed  in  future,  to  watch  over 
and  amend  these  laws,  as  the  progressive  wants  of  a  growing 
commerce  will  require,  when  the  members  of  those  legislatures 
are  made  aware  that  they  cannot  legislate  on  this  subject  without 
violating  the  oaths  they  have  taken  to  support  the  Constitution 
of  the  United  States? 

We  are  of  opinion  that  this  State  law  was  enacted  by  virtue 
of  a  power,  resitling  in  the  State  to  legislate;  that  it  is  not  in  con- 
flict with  any  law  of  Congress;  that  it  does  not  interfere  with 
any  system  which  Congress  has  established  by  making  regulations, 
or  by  intentionally  leaving  individuals  to  their  own  unrestricted 
action;  that  this  law  is  therefore  valid,  antl  the  jutlgment  of  the 
Supreme  Court  of  Pennsylvania  in  each  case  must  be  affirmed.^ 

McLean  and  Wayne,  JJ.,  dissented;  and  Daniel,  J.,  although 
he  concurred  in  the  judgment  of  the  court,  yet  dissented  from  its 
reasoning. 

McLean,  J.  .  .  . 

Daniel,  J.  .  .  . 

1  See  Ex  parte  McNiel,  13  Wall.  236  (1872);  Spraigue  v.  Thompson,  118 
U.  S.  90  (1886);  Smith  v.  Alabama,  124  U.  S.  465  (1888);  Olsen  v.  Smith,  195 
U.  S.  332  (1904).  — Ed. 


VEAZIE   V.   MOOR.  923 

VEAZIE  V.   MOOR. 

Supreme  Court  of  the  United  States.     1852. 

[14  Howard,  568.]  i 

Error  to  the  Supreme  Judicial  Court  of  Maine. 

In  the  State  court  Moor  sought  an  injunction  against  the  run- 
ning of  the  steamboat  Governor  Dana  on  the  Penobscot  River  be- 
tween Old  Town  and  Piscataquis  Falls.  The  basis  of  the  bill  was 
that  a  Maine  statute  of  July  30,  1846,  authorized  certain  persons 
to  improve  the  navigation  of  the  Penobscot  River  above  Old  Town, 
and  granted  to  them  for  twenty  j^ears  the  sole  right  of  navigating 
the  river  with  steamboats  from  Old  Town  so  far  up  as  they  should 
render  the  river  navigable.  Moor,  as  assignee  of  the  grantees, 
made  the  improvements  and  placed  steamboats  upon  the  desig- 
nated part  of  the  river.  The  river  is  wholly  in  Maine;  and  it  is 
not  subject  to  tides  above  Bangor,  near  its  mouth.  By  reason  of 
a  fall  and  dams  it  has  never  been  navigable  between  Bangor  and 
Old  Town.  From  Bangor  to  the  steamboat  landing  at  Old  Town 
there  is  a  railway.  In  the  stretch  of  river  affected  by  the  improve- 
ments are  islands  owned  and  occupied  by  the  Penobscot  tribe  of 
Indians,  a  tribe  under  the  jurisdiction  and  guardianship  of  Maine. 
The  steamboat  Governor  Dana  was  enrolled  and  licensed  for  the 
coasting  trade,  at  the  custom  house  in  Bangor;  and  it  ran  upon- 
the  improved  part  of  the  river  above  Old  Town.  Upon  an  agreed 
statement  of  facts  the  Supreme  Judicial  Court  granted  the  in- 
junction as  prayed  (31  Me.  360). 

Paine,  for  plaintiffs  in  error;  and  Kelley  and  Moor,  contra. 

Daniel,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

Upon  a  comparison  of  this  decree,  and  of  the  statute  upon 
which  it  is  founded,  with  the  pro\'ision  of  the  Constitution  already 
referred  to,  we  are  unable  to  perceive  by  what  rule  of  interpreta- 
tion either  the  statute  or  the  decree  can  be  brought  within  either 
of  the  categories  comprised  in  that  provision. 

These  categories  are,  1st.  Commerce  with  foreign  nations. 
2dly.  Commerce  amongst  the  several  States.  3dly.  Commerce 
with  the  Indian  tribes.  Taking  the  term  commerce  in  its  broad- 
est acceptation,  supposing  it  to  embrace  not  merely  traffic,  but 
the  means  and  vehicles  by  which  it  is  prosecuted,  can  it  properly 
be  made  to  include  objects  and  purposes  such  as  those  contem- 

1  A  statement  has  been  framed  upon  the  opinion.  —  Ed. 


924     commerce:   decisions  before  close  of  civil  war. 

plated  by  the  law  under  review?  Commerce  with  foreign  nations 
must  signify  commerce  which  in  some  sense  is  necessarily  con- 
nected with  these  nations,  transactions  which  either  immediately, 
or  at  some  stage  of  their  progress,  must  l)e  extraterritorial.  The 
phrase  can  never  be  appUed  to  transactions  wholly  internal,  be- 
tween citizens  of  the  same  community,  or  to  a  polity  and  laws 
whose  ends  and  purposes  and  operations  are  restricted  to  the 
territory  and  soil  and  jurisdiction  of  such  community.  Nor  can 
it  be  properly  concluded,  that,  because  the  products  of  domestic 
enterprise  in  agriculture  or  manufactures,  or  in  the  arts,  may 
ultimately  become  the  subjects  of  foreign  commerce,  that  the 
control  of  the  means  or  the  encouragements  by  which  enterprise 
is  fostered  and  protected,  is  legitimately  within  the  import  of  the 
phrase  foreign  commerce,  or  fairly  implied  in  any  investiture  of 
the  power  to  regulate  such  commerce.  A  preten.sion  as  far  reach- 
ing as  this  would  extend  to  contracts  between  citiz<'n  and  citizen 
of  the  same  State,  would  control  the  pursuits  of  the  planter,  the 
grazier,  the  manufacturer,  the  mechanic,  the  immense  operations 
of  the  colheries  and  mines  and  furnaces  of  the  country;  for  there 
is  not  one  of  these  avocations,  the  results  of  which  may  not  become 
the  subjects  of  foreign  commerce,  and  be  borne  either  by  turn- 
pikes, canals,  or  railroads,  from  point  to  point  within  the  several 
States,  towards  an  ultimate  destination,  hke  the  one  above  men- 
tioned. Such  a  pretension  would  effectually  prevent  or  paralyze 
every  effort  at  internal  improvement  by  the  several  States;  for 
it  cannot  be  supposed,  that  the  States  would  exliaust  their  capital 
and  their  credit  in  the  construction  of  turnpikes,  canals,  and  rail- 
roads, the  remuneration  derivable  from  which,  and  all  control  over 
which,  might  be  immediately  wrested  from  them,  because  such 
pubUc  works  would  be  facilities  for  a  commerce  which,  whilst 
availing  itself  of  those  facilities,  was  unquestionably  internal, 
although  intermediately  or  ultimately  it  might  become  foreign. 

The  rule  here  given  with  respect  to  the  regulation  of  foreign 
commerce,  equally  excludes  from  the  regulation  of  commerce 
between  the  States  and  the  Indian  tribes  the  control  over  turn- 
pikes, canals,  or  railroads,  or  the  clearing  and  deepening  of  water- 
courses exclusively  within  the  States,  or  the  management  of  the 
transportation  upon  and  by  means  of  such  improvements.  In 
truth,  the  power  vested  in  Congress  by  article  1st,  section  8th  of 
the  Constitution,  was  not  designed  to  operate  upon  matters  Hke 
those  embraced  in  the  statute  of  the  State  of  Maine,  and  which 
are  essentiallv  local  in  their  nature  and  extent.    The  design  and 


SMITH  V.   MARYLAND.  925 

object  of  that  power,  as  evinced  in  the  history  of  the  Constitution, 
was  to  estabhsh  a  perfect  equaUty  amongst  the  several  States  as 
to  commercial  rights,  and  to  prevent  unjust  and  invidious  dis- 
tmctions,  which  local  jealousies  or  local  and  partial  interests  might 
be  disposed  to  introduce  and  maintain.  These  were  the  views 
pressed  upon  the  pubhc  attention  by  the  advocates  for  the  adop- 
tion of  the  Constitution,  and  in  accordance  therewith  have  been 
the  expositions  of  this  instrument  propounded  by  this  court,  in 
decisions  quoted  by  counsel  on  either  side  of  this  cause,  though 
differently  applied  by  them.  Vide  The  FederaUst,  Nos.  7  and  11, 
and  the  cases  of  Gibbons  v.  Ogden,  9  Wheat.  1;  New  York  v. 
Miln,  11  Peters,  102;  Brown  v.  The  State  of  Maryland,  12 
Wheat.  419;  and  the  License  cases  in  5  Howard,  504. 

The  fact  of  procuring  from  the  collector  of  the  port  of  Bangor 
a  Ucense  to  prosecute  the  coasting  trade  for  the  boat  placed  upon 
the  Penobscot  by  the  plaintiff  in  error,  (the  Governor  Dana,)  does 
not  affect,  in  the  slightest  degree,  the  rights  or  condition  of  the 
parties.  These  remain  precisely  as  they  would  have  stood  had  no 
such  license  been  obtained.  A  hcense  to  prosecute  the  coasting 
trade  is  a  warrant  to  traverse  the  waters  washing  or  bounding 
the  coasts  of  the  United  States.  Such  a  Hcense  conveys  no  privilege 
to  use,  free  of  tolls,  or  of  any  condition  whatsoever,  the  canals 
constructed  by  a  State,  or  the  watercourses  partaking  of  the 
character  of  canals  exclusively  within  the  interior  of  a  State,  and 
made  practicable  for  navigation  by  the  funds  of  the  State,  or  by 
privileges  she  may  have  conferred  for  the  accomplishment  of  the 
same  end.  The  attempt  to  use  a  coasting  hcense  for  a  purpose 
like  this,  is,  in  the  first  place,  a  departure  from  the  obvious  mean- 
ing of  the  document  itself,  and  an  abuse  wholly  beyond  the  object 
and  the  power  of  the  government  in  granting  it.  .  .  . 

Affirmed. 


SMITH  V.   MARYLAND. 
Supreme  Court  of  the  United  States.     1855. 

[IS  Howard,  71.] 

This  case  was  brought  up  by  writ  of  error  from  the  Circuit 
Court  of  the  Second  Judicial  Circuit  of  the  State  of  Maryland, 
in  and  for  Anne  Arundel  County. 

The  case  is  stated  in  the  opinion  of  the  court. 


926     commerce:   decisions  before  close  of  civil  war. 

Latrobe,  for  plaintiff  in  error;  and  Campbell,  contra. 

Curtis,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  for  Anne  Arundel 
County,  in  the  State  of  Maryland,  under  the  25th  section  of  the 
judiciary  act  of  1789.  It  appears  by  the  record  that  the  plaintiff 
in  error,  being  a  citizen  of  the  State  of  Pennsylvania,  was  the 
owner  of  a  sloop  called  The  Volant,  which  was  regularly  enrolled 
at  the  port  of  Philatlelphia,  and  licensed  to  be  employed  in  the 
coasting  trade  and  fisheries;  that,  in  March,  1853,  the  schooner 
was  seized  by  the  sheriff  of  Anne  Arundel  County,  while  engaged 
in  dredging  for  oysters  in  the  Chesapeake  Bay,  and  was  con- 
demned to  be  forfeited  to  the  State  of  Maryland,  by  a  justice  of 
the  peace  of  that  State,  before  whom  the  proceeding  was  had; 
that  on  appeal  to  the  Circuit  Court  for  the  county,  being  the 
highest  court  in  which  a  decision  could  be  had,  this  decree  of  for- 
feiture was  affirmed;  and  that  the  plaintiff  in  error  insisted,  in 
the  Circuit  Court,  that  such  seizure  and  condemnation  were  re- 
pugnant to  the  Constitution  of  the  United  States. 

This  vessel  being  enrolled  and  licensed,  under  the  Constitution 
and  laws  of  the  United  States,  to  be  employed  in  the  coasting 
trade  and  fisheries,  and  while  so  employed  having  been  seized 
and  condemned  under  a  law  of  a  State,  the  owner  has  a  right  to 
the  decision  of  this  court  upon  the  question,  whether  the  law  of 
the  State,  by  virtue  of  which  condemnation  passed,  was  repug- 
nant to  the  Constitution  or  laws  of  the  United  States. 

That  part  of  the  law  in  question  containing  the  prohibition 
and  inflicting  the  penalty,  which  appears  to  have  been  applied  by 
the  State  court  to  this  case,  is  as  follows  (1833,  ch.  254):  — 

"An  Act  to  prevent  the  Destruction  of  Oysters  in  the  Waters  of  this 

State. 

"Whereas,  the  destruction  of  oysters  in  the  waters  of  this 
State  is  seriously  apprehended,  from  the  destructive  instrument 
used  in  taking  them,  therefore  — 

"  Sec.  1.  Be  it  enacted  by  the  general  assembly  of  Manjland, 
That  it  shall  be  unlawful  to  take  or  catch  oysters  in  any  of  the 
waters  of  this  State  with  a  scoop  or  drag,  or  any  other  instrument 
than  such  tongs  and  rakes  as  are  now  in  use,  and  authorized  by 
law;  and  all  persons  whatever  are  hereby  forbid  the  use  of  such 
instruments  in  taking  or  catching  oysters  in  the  waters  of  this 
State,  on  pain  of  forfeiting  to  the  State  the  boat  or  vessel  em- 


SMITH  V.   MARYLAND.  927 

ployed   for   the   purpose,    together   with   her   papers,   furniture, 
tackle,  and  apparel,  and  all  things  on  board  the  same."  .  .  . 

It  was  argued  that  it  is  repugnant  to  that  clause  of  the  Consti- 
tution which  confers  on  Congress  power  to  regulate  commerce, 
because  it  authorizes  the  seizure,  detention,  and  forfeiture  of  a 
vessel  enrolled  and  Ucensed  for  the  coasting  trade,  under  the  laws 
of  the  United  States,  while  engaged  in  that  trade. 

But  such  enrolment  and  Hcense  confer  no  immunity  from  the 
operation  of  vahd  laws  of  a  State.  If  a  vessel  of  the  United 
States,  engaged  in  commerce  between  two  States,  be  interrupted 
therein  by  a  law  of  a  State,  the  question  arises  whether  the  State 
had  power  to  make  the  law  by  force  of  which  the  voyage  was 
interrupted.  This  question  must  be  decided,  in  each  case,  upon 
its  own  facts.  If  it  be  found,  as  in  Gibbons  v.  Ogden,  9  Wheat.  1, 
that  the  State  had  not  power  to  make  the  law,  under  which  a 
vessel  of  the  United  States  was  prevented  from  prosecuting  its 
voyage,  then  the  prevention  is  unlawful,  and  the  proceedings 
under  the  law  invahd.  But  a  State  may  make  vahd  laws  for  the 
seizure  of  vessels  of  the  United  States.  Such,  among  others,  are 
quarantine  and  health  laws. 

In  considering  whether  this  law  of  Maryland  belongs  to  one  or 
the  .other  of  these  classes  of  laws,  there  are  certain  established 
principles  to  be  kept  in  view,  which  we  deem  decisive. 

Whatever  soil  below  low-water  mark  is  the  subject  of  exclusive 
propriety  and  ownership,  belongs  to  the  State  on  whose  maritime 
border  and  within  whose  territory  it  lies,  subject  to  any  lawful 
grants  of  that  soil  by  the  State,  or  the  sovereign  power  which 
governed  its  territory  before  the  declaration  of  independence. 
Pollard's  Lessee  v.  Hagan,  3  How.  212;  Martin  v.  Waddell,  16 
Pet.  367;  Den  v.  The  Jersey  Co.,  15  How.  426. 

But  this  soil  is  held  by  the  State,  not  only  subject  to,  but  in 
some  sense  in  trust  for,  the  enjoyment  of  certain  pubhc  rights, 
among  which  is  the  common  Uberty  of  taking  fish,  as  well  shell- 
fish as  floating  fish.  ...  It  may  forbid  all  such  acts  as  would 
render  the  public  rights  less  valuable.  .  .  .  This  power  results 
from  the  ownership  of  the  soil,  from  the  legislative  jurisdiction 
of  the  State  over  it,  and  from  its  duty  to  preserve  unimpaired 
those  public  uses  for  which  the  soil  is  held.  Vattel,  b.  1,  c.  20, 
§  246;  Corfield  v.  Coryell,  4  Wash.  R.  376.  It  has  been  exercised 
by  many  of  the  States.  See  Angell  on  Tide  Waters,  145,  156, 
170,  192-193. 

The  law  now  in  question  is  of  this  character.    Its  avowed,  and 


928     commerce:   decisions  before  close  of  civil  war. 

unquestionably  its  real,  object  is  to  prevent  the  destruction  of 
oysters  within  the  waters  of  the  State,  by  the  use  of  particular 
instruments  in  taking  them.  It  does  not  touch  the  subject  of 
the  common  liberty  of  taking  oysters,  save  for  the  purpose  of 
guarding  it  from  injury,  to  whomsoever  it  may  belong,  and  by 
whomsoever  it  may  be  enjoyed.  Whether  this  liberty  belongs 
exclusively  to  the  citizens  of  the  State  of  Maryland,  or  may  law- 
fully be  enjoyed  in  common  by  all  citizens  of  the  United  States; 
whether  this  public  use  may  be  restricted  by  the  State  to  its  own 
citizens,  or  a  part  of  them,  or  by  force  of  the  Constitution  of  the 
United  States,  must  remain  common  to  all  citizens  of  the  United 
States;  whether  the  national  government,  by  a  treaty  or  act  of 
Congress,  can  grant  to  foreigners  the  right  to  participate  therein; 
or  what,  in  general,  arc  the  limits  of  the  trust  upon  which  the 
State  holds  this  soil,  or  its  power  to  define  and  control  that  trust, 
are  matters  wholly  without  the  scope  of  this  case,  and  ui)on 
which  we  give  no  opinion. 

So  much  of  this  law  as  is  above  cited  may  be  correctly  said  to 
be  not  in  conflict  with,  but  in  furtherance  of,  any  and  all  public 
rights  of  taking  oysters,  whatever  they  may  be;  and  it  is  the 
judgment  of  the  court,  that  it  is  within  the  legislative  power  of 
the  State  to  interrupt  the  voyage  and  inflict  the  forfeiture  of  a 
vessel  enrolled  and  licensed  under  the  laws  of  the  United  States, 
for  a  disobedience,  by  those  on  board,  of  the  commands  of  such 

a  law.  .  .  . 

Affirmed,  with  costs. 


FOSTER  V.   DAVENPORT. 
Supreme  Court  of  the  United  States.     1859. 

[22  Howard,  244.) » 

Error  to  the  Supreme  Court  of  Alabama. 

Davenport  and  others,  commissioners  of  pilotage  of  the  harbor 
of  Mobile,  brought  action  in  the  City  Court  against  the  steamboat 
Swan,  to  recover  penalties  for  violating  an  Alabama  statute  of 
February  15,  1854,  requiring  owners  of  steamboats  navigating  the 

1  A  statement  has  been  framed  with  the  aid  of  Sinnot  v.  Davenport,  22 
How.  227  (1859).  — Ed. 


FOSTER  V.   DAVENPORT.  929 

waters  of  the  State,  before  the  boat  shall  leave  the  port  of  ]\Iobile, 
to  file  a  statement  of  the  name  of  the  boat  and  of  the  owners  and 
of  their  residences.  Other  facts  are  given  in  the  opinion.  The 
City  Court  gave  judgment  against  the  vessel,  and  the  judgment 
was  affirmed  by  the  Supreme  Court  of  Alabama. 

Phillips,  for  plaintiffs  in  error;  and  C.  C.  Clay,  Jr.,  contra. 

Nelson,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

According  to  the  admitted  state  of  facts,  this  boat  was  engaged 
in  lightering  goods  from  and  to  vessels  anchored  in  the  lower  bay 
of  ^Mobile,  and  the  wharves  of  the  city,  and  in  towing  vessels  an- 
chored there  to  and  from  the  city,  and,  in  some  instances,  towing 
the  same  beyond  the  outer  bar  of  the  bay,  and  into  the  Gulf  to 
the  distance  of  several  miles.  This  boat  was  duly  enrolled  and 
licensed  to  carry  on  the  coasting  trade  at  the  time  she  was  en- 
gaged in  this  business,  and  of  the  seizure  under  the  State  law. 

It  also  appears  from  the  answer,  and  which  facts  are  admitted 
to  be  true,  that  the  port  of  IVIobile  is  resorted  to  and  frequented 
by  ships  and  vessels,  of  different  size  in  tonnage,  engaged  in  the 
trade  and  commerce  of  the  United  States  with  foreign  nations  and 
among  the  several  States;  that  the  vessels  of  small  size  and  ton- 
nage are  accustomed  to  come  up  to  the  wharves  of  the  city,  and 
discharge  their  cargo,  but  that  large  vessels  frequenting  said  port 
cannot  come  up,  on  account  of  the  shallowness  of  the  waters  in 
some  parts  of  the  bay,  and  are  compelled  to  anchor  at  the  lower 
bay,  and  to  discharge  and  receive  their  cargo  Ijy  lighters;  and 
that  the  steamboat  of  claimants  was  engaged  in  lightering  goods 
to  and  from  said  vessels,  and  in  towing  vessels  to  and  from  the 
lower  bay  and  the  wharves  of  the  city. 

It  is  quite  apparent,  from  the  facts  admitted  in  the  case,  that 
this  steamboat  was  employed  in  aid  of  vessels  engaged  in  the 
foreign  or  coastwise  trade  and  commerce  of  the  United  States, 
either  in  the  delivery  of  their  cargoes,  or  in  to^\^ng  the  vessels 
themselves  to  the  port  of  Mobile.  The  character  of  the  navigation 
and  business  in  which  it  was  employed  caimot  be  distinguished 
from  that  in  which  the  vessels  it  towed  or  unloaded  were  engaged. 
The  lightering  or  towing  was  but  the  prolongation  of  the  voyage 
of  the  vessels  assisted  to  their  port  of  destination.  .  .  . 

Reversed. 


930     commerce:   decisions  before  close  of  civil  war. 

CONWAY  V.  TAYLOR. 
Supreme  Court  of  the  United  States.     1861. 

[1  Black,  603.]  i 

Error  to  the  Court  of  Appeals  of  Kentucky. 

In  1794  the  proper  Kentucky  authorities  granted  to  James 
Taylor  a  ferry  across  the  Ohio  River,  from  his  landing  in  front 
of  Newport,  with  authority  to  receive  the  same  fares  which  were 
allowed  upon  transportation  from  the  opposite  side.  The  ferry 
was  established  and  maintained.  In  1854  a  competing  ferry  was 
estabUshed,  the  pubUe  landing  of  Newport  being  used.  In  January, 
1854,  the  claimants  under  the  Taylor  license  brought,  in  the  Circuit 
Court  of  Campbell  County,  a  suit  to  enjoin  the  competition.  The 
competing  ferry-boat  obtained  on  March  6,  1854,  a  ferry  license 
under  the  laws  of  Ohio.  All  the  boats  had  coasting  licenses  from 
the  United  States.  The  lower  court  decreed  that  the  owners  of 
the  competing  boat  be  enjoined  from  landing  that  boat  or  any 
other  at  the  Newport  landing  for  the  purjwse  of  receiving  or  land- 
ing persons  or  property  ferried  from,  or  to  be  ferrietl  to,  the 
opposite  shore.  On  appeal  the  Court  of  Appeals,  holding  it  errone- 
ous to  adjudge  the  exclusive  right  of  ferrying  from  both  sides  of 
the  river  to  be  in  the  plaintiflfs,  reversed  the  judgment  and  re- 
manded the  cause  with  directions  to  perpetuate  the  injunction  to 
the  extent  of  declaring  the  exclusive  right  of  ferrying  from  the 
Kentucky  side  to  be  in  the  plaintiffs. 

Stanbery,  for  plaintiffs  in  error;  and  Stevenson,  contra. 

SwAYNE,  J.  .  .  .  The  concurrent  action  of  the  two  States  was 
not  necessary.  "A  ferry  is  in  respect  of  the  landing  place,  and  not 
of  the  water.  The  water  may  be  to  one,  and  the  ferry  to  another." 
13  Viner's  Ab.  208,  A. 

In  11  Wend.  590,  The  People  v.  Babcock,  this  same  objection 
was  urged,  in  respect  of  a  Ucense  under  the  laws  of  New  York,  for 
a  ferry  across  the  Niagara  River.  The  court  said:  "The  privilege 
of  the  Ucense  may  not  be  as  valuable  to  the  grantee,  by  not  ex- 
tending across  the  river;  but  as  far  as  it  does  extend,  he  is  entitled 
to  all  the  provisions  of  the  law,  the  object  of  which  is  to  secure 
the  exclusive  privilege  of  maintaining  a  ferry  at  a  designated 
place."  .  .  . 

The  franchise  is  confined  to  the  transit  from  the  shore  of  the 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


CONWAY  V.   TAYLOR. 


931 


f     fu    ^^^i^u  "^^.^'  ^^''^  '^"  '^^^'  ^«^  ^^^«^^f  «he  concedes 

In^^rQ.  .  ^'  ''""''  ""^  °^'*^^^'  ^^  *^^  ^^y  «f  the  transit 
trom  the  States  lying  upon  the  other  side  of  the  Ohio  and  Missis- 
sippi.    She  ha^  left  that  to  be  wholly  regulated  by  their  ferry 

A  ferry  franchise  is  as  much  property  as  a  rent  or  any  other  in- 
corporeal hereditament,  or  chattels,  or  realty.  It  is  clothed  with 
the  same  sanctity  and  entitled  to  the  same  protection  as  other 
property. 

"An  estate  in  such  a  franchise  and  an  estate  in  land  rest  upon 
the  same  principle."    3  Kent's  Com.  459. 

Lastly  it  is  urged  that  the  Commodore,  having  been  enroUed 
under  the  laws  of  the  United  States,  and  hcensed  under  those 
laws  for  the  coa.sting  trade,  the  decree  violates  the  rights 
which  the  enrolment  and  license  gave  to  the  appellants  in 
respect  of  that  trade  by  obstructing  the  free  navigation  of  the 
(Jhio. 

Here  it  is  necessary  to  consider  the  extent  of  the  injunction 
which  the  decree  directs  to  be  entered  by  the  court  below 

The  counsel  for  the  appellants  insists  that,  ''as  respects  trans- 
portation from  the  Kentucky  side,  and  from  the  Commodore's 
wharf  at  the  foot  of  Monmouth  Street,  that  vessel  is  enjoined 
under  all  or  any  circumstances,  from  transporting  persons  or  prop- 
erty to  the  opposite  shore,  unless  under  the  authority  of  the  State 
of  Kentucky." 

We  do  not  so  understand  the  decree.     If  we  did,  we  should 
without  hesitation,  reverse  it.     An  examination  of  the  context 
leaves  no  doubt,  in  our  minds,  that  the  court  intended  only  to 
enjoin  the  Commodore,  under  ''all  or  any  circumstances,  from 
transporting  persons  or  property"  from  the  Kentucky  shore  in 
violation  of  the  ferry  rights  of  the  appellees,  which  it  was  the  pur- 
pose of  the  decree  to  protect.    The  bill  made  no  case,  and  asked 
nothing,  beyond  this.    The  court  could  not  have  intended  to  go 
beyond  the  case  before  it.    That  the  appeUants  had  the  right  after 
as  before  the  injunction,  in  the  prosecution  of  the  carrying  and 
coastmg  trade,  and  of  ordinary  commercial  navigation,  to  trans- 
port "  persons  and  property"  from  the  Kentucky  shore,  no  one 
we  apprehend,  will  deny.     The  hmitation  is  the  line  which  pro- 
tects the  ferry-  rights  of  the  appellees. 

Those  rights  give  them  no  monopoly,  under  "all  circumstances  " 
of   aU   commercial    transportation    from    the    Kentucky   shore 
They  have  no  right  to  exclude  or  restrain  those  there  prosecuting 


932     commerce:   decisions  before  close  of  civil  war. 

the  business  of  commerce  in  good  faith,  without  the  rcguhirity  or 
purposes  of  ferry  trips,  and  seeking  in  nowise  to  interfere  with 
the  enjoyment  of  their  franchise.  To  suppose  that  the  Court  of 
Appeals,  in  the  hmguage  referred  to,  intended  to  lay  down  the 
converse  of  these  propositions,  would  do  that  distinguished  tril)unHl 
gross  injustice. 

The  Commodore  was  run  openly  and  avowedly  as  a  ferryboat; 
that  was  her  business.  The  injunction  as  to  her  and  her  business 
was  correct. 

The  language  of  the  court  must  be  considered  as  limited  to  that 
subject.  The  zeal  with  which  this  point  was  pressed  by  the  counsel 
for  the  appellants  has  led  us  thus  fully  to  consider  it. 

The  enrolment  of  the  Commodore  ascertained  her  ownership, 
and  gave  her  a  national  character. 

The  license  gave  her  authority  to  carry  on  the  coasting  trade. 
Together  they  put  the  appellants  in  a  position  to  make  the  ques- 
tion here  to  be  considered. 

The  language  of  the  Constitution  to  which  this  objection  refers 
is  as  follows:  ''The  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States,  and 
with  the  Indian  tribes."    Art.  I,  §  8,  clause  4. 

The  character  and  extent  of  the  power  thus  conferred,  and  the 
boundaries  which  separate  that  power  from  the  powers  of  the 
States  touching  the  same  subject,  came  under  discussion  in  this 
court,  for  the  first  time,  in  Gibbons  v.  Ogden  (9  Wheat.  1).  It 
was  argued  on  both  sides  with  exhaustive  learning  and  ability. 
The  judgment  of  the  court  was  delivered  by  Chief  Justice  Mar- 
shall. The  court  said:  "They"  (State  inspection  laws)  "form  a 
portion  of  the  immense  mass  of  legislation  which  embraces  every- 
thing within  the  territory  of  a  State  riot  surrendered  to  the  General 
Government;  all  which  can  be  most  advantageously  exercised  by 
the  States  themselves.  Inspection  laws,  quarantine  laws,  health 
laws  of  every  description,  as  well  as  laws  for  regulating  the  internal 
commerce  of  a  State,  and  those  which  respect  turnpike  roads, 
ferries,  etc.,  are  parts  of  this  mass."  .  .  . 

Rights  of  commerce  give  no  authority  to  their  possessor  to 
invade  the  rights  of  property.  He  cannot  use  a  bridge,  a  canal, 
or  a  railroad  without  paying  the  fixed  rate  of  compensation.  He 
cannot  use  a  warehouse  or  vehicle  of  transportation  belonging  to 
another  without  the  owner's  consent.  No  more  can  he  invade 
the  ferry  franchise  of  another  without  authority  from  the  holder. 
The  vitality  of  such  a  franchise  lies  in  its  exclusiveness.     The 


CONWAY  V.   TAYLOR.  933 

moment  the  right  becomes  common,  the  franchise  ceases  to 
exist. 

We  have  shown  that  it  is  property,  and,  as  such,  rests  upon  the 
same  principle  which  lies  at  the  foundation  of  all  other  property. 

Undoubtedly,  the  States,  in  conferring  ferry  rights,  may  pass 
laws  so  infringing  the  commercial  power  of  the  nation  that  it 
would  be  the  duty  of  this  court  to  annul  or  control  them.  13  How. 
519,  Wheeling  Bridge  case.  The  function  is  one  of  extreme 
delicacy,  and  onlj-  to  be  performed  where  the  infraction  is  clear. 
The  ferry  laws  in  question  in  this  case  are  not  of  that  character. 
We  find  nothing  in  them  transcending  the  legitimate  exercise  of 
the  legislative  power  of  the  State. 

The  authorities  referred  to  must  be  considered  as  putting  the 
question  at  rest.  The  ordinance  of  1787  was  not  particularly 
brought  to  our  attention  in  the  discussion  at  bar.  Any  argument 
drawn  from  that  source  is  sufficiently  met  by  what  has  been 
already  said. 

The  counsel  for  the  appellees  has  invoked  the  authority  of 
Cooley  V.  The  Board  of  Wardens  of  Philadelphia  (12  How.  299), 
in  which  a  majority  of  this  court  held  that,  upon  certain  subjects 
affecting  commerce  as  placed  under  the  guardianship  of  the  Con- 
stitution of  the  United  States,  the  States  may  pass  laws  which 
will  be  operative  till  Congress  shall  see  fit  to  annul  them. 

In  the  view  we  have  taken  of  this  case,  we  have  found  it  un- 
necessary to  consider  that  subject. 

There  has  been  now  nearly  three-quarters  of  a  century  of  practi- 
cal interpretation  of  the  Constitution.  During  all  that  time,  as 
before  the  Constitution  had  its  birth,  the  States  have  exercised 
the  power  to  establish  and  regulate  ferries;  Congress  never.  We 
have  sought  in  vain  for  any  act  of  Congress  which  involves  the 
exercise  of  this  power. 

That  the  authority  Ues  within  the  scope  of  "  that  immense  mass" 
of  undelegated  powers  which  "are  reserved  to  the  States  respec- 
tively," we  think  too  clear  to  admit  of  doubt. 

We  place  our  judgment  wholly  upon  that  ground. 

There  is  no  error  in  the  decree  of  the  Court  of  Appeals.  It  is 
therefore  affirmed,  with  costs. 


934       commerce:   decisions  since  close  of  civil  war. 

Section  II. 
Decisions  since  the  Close  of  the  Civil  War. 

STEAMSHIP  COMPANY  v.    PORTWARDENS. 
Supreme  Court  of  the  United  States.     1867. 

[6  Wallace,  31.] » 

Error  to  the  Supreme  Court  of  Louisiana. 

In  a  justice's  court  judgment  was  recovered  for  a  fee  of  five 
dollars  under  a  Louisiana  statute  of  Mar.  15,  1855,  which  enacted 
that  the  master  and  wardens  of  the  port  of  New  Orleans  should 
be  entitled  to  demand  that  sum,  in  addition  to  other  fees,  whether 
called  on  to  perform  any  service  or  not,  from  every  vessel  arriving 
in  the  port.  The  judgment  was  affirmed  by  the  Supreme  Court 
of  Louisiana. 

Durant,  for  defendants  in  error;    and  Salomon,  contra. 

Chase,  C.  J.,  delivered  the  opinion  of  the  court. 

That  the  power  to  regulate  commerce  with  foreign  nations  and 
among  the  States  is  vested  in  Congress,  and  that  no  State  without 
the  consent  of  Congress  can  lay  any  duties  or  imposts  on  imports 
or  exports,  except  what  may  be  absolutely  necessary  for  execut- 
ing its  inspection  laws,  or  any  duty  of  tonnage,  are  familiar 
provisions  of  the  Constitution,  whicli  have  been  frequently  and 
thoroughly  examined  in  former  judgments  of  this  court. 

The  power  to  regulate  commerce  was  given  to  Congress  in 
comprehensive  terms,  and  with  the  single  exception  of  the  power 
to  lay  duties  on  exports.  And  it  was  thus  given,  so  far  as  it  relates 
to  commerce  between  the  States,  with  the  obvious  intent  to  place 
that  commerce  beyond  interruption  or  embarrassment  arising 
from  the  conflicting  or  hostile  State  regulations. 

At  the  same  time  it  was  not  intended  to  interfere  with  the 
exercise  of  State  authority  upon  subjects  properly  within  State 
jurisdiction.  The  power  to  enact  inspection  laws  is  expressly 
recognized  as  not  affected  by  the  grant  of  power  to  regulate  com- 
merce. And  some  other  powers,  the  exercise  of  which  may,  in 
various  degrees,  affect  commerce,  have  always  been  held  not  to 
be  within  the  grant  to  Congress.  To  this  class  it  is  settled  belong 
quarantine  and  other  health  laws,  laws  concerning  the  domestic 
police,  and  laws  regulating  the  internal  trade  of  a  State. 
*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


STEAMSHIP  COMPANY  V.   PORTWARDENS.  935 

There  are  other  cases  in  which,  either  by  express  provision  or  by 
omission  to  exercise  its  own  powers,  Congress  has  left  to  the  regula- 
tion of  States  matters  clearly  within  its  commercial  powers.  Of 
this  description  were  the  pilot  laws  recognized  as  valid  by  the  act 
of  1789,  1  Stat,  at  Large,  54,  and  1837,  5  Id.  153. 

That  the  act  of  the  legislature  of  Louisiana  is  a  regulation  of 
commerce  can  hardly  be  doubted.  It  imposes  a  tax  upon  every 
ship  entering  the  port  of  New  Orleans,  to  be  collected  upon  every 
entry.  In  the  case  of  a  steamer  plying  between  that  port  and 
ports  in  adjoining  States  of  Alabama  or  Texas,  it  becomes  a  serious 
burden,  and  works  the  very  mischief  against  which  the  Constitu- 
tion intended  to  protect  commerce  among  the  States. 

It  is  claimed,  however,  that  the  tax  is  for  compensation  to  the 
master  and  wardens,  whose  duty  it  is  to  perform,  when  called  upon, 
the  various  services  required  of  portwardens,  and  that  the  law  for 
its  collection  stands  therefore  on  the  same  constitutional  grounds 
as  the  State  laws  authorizing  the  collection  of  pilotage. 

But  there  are  two  answers  to  this  proposition. 

The  first  is,  that  no  act  of  Congress  recognizes  such  laws  as 
that  of  Louisiana  as  proper  and  beneficial  regulations,  while  the 
State  laws  in  respect  to  pilotage  are  thus  recognized. 

The  second  is,  that  the  right  to  recover  pilotage  and  half- 
pilotage,  as  prescribed  by  State  legislation,  rests  not  only  on  State 
laws  but  upon  contract.  Pilotage  is  compensation  for  services 
performed;  half-pilotage  is  compensation  for  services  which  the 
pilot  has  put  himself  in  readiness  to  perform  by  labor,  risk,  and 
cost,  and  which  he  has  actually  offered  to  perform.  Steamship 
Company  v.  Joliffe,  2  Wallace,  450.  But  in  the  case  before  us 
there  were  no  services  and  no  offer  to  perform  any.  The  State 
law  is  express.  It  subjects  the  vessel  to  the  demand  of  the  master 
and  wardens,  "whether  they  be  called  on  to  perform  any  service 
or  not." 

It  may  be  true  that  the  existence  of  such  a  body  of  men  is 
beneficial  to  commerce,  but  the  same  is  true  of  the  government  of 
the  State,  of  the  city  government,  of  the  courts,  of  the  whole  body 
of  pubUc  functionaries.  If  the  constitutionahty  of  the  charge  for 
the  benefit  of  the  master  and  wardens  can  be  maintained  upon 
the  ground  that  it  secures  compensation  for  services,  it  is  difficult 
to  perceive  upon  what  grounds  the  constitutionahty  of  any  State 
law  imposing  taxes  for  the  benefit  of  the  State  government  upon 
vessels  landing  in  its  ports,  can  be  questioned. 

We  think  it  quite  clear,  therefore,  that  the  regulation  of  com- 


93G       commerce:   decisions  since  close  of  civil  wak. 

merce  made  by  the  act  before  us  comes  within  none  of  the  Hmita- 
tions  or  exceptions  to  the  general  rule  of  the  Constitution  that 
the  reguhition  of  commerce  among  the  States  is  in  Congress. 

We  think,  also,  that  the  tax  imposed  by  the  act  of  Louisiana 
is,  in  the  fair  sense  of  the  word,  a  duty  on  tonnage.  In  the  most 
obvious  and  general  sense  it  is  true,  those  words  tlescribe  a  duty 
proportioned  to  the  tonnage  of  the  vessel;  a  certain  rate  on  each 
ton.  But  it  seems  plain  that,  taken  in  this  restricted  sense,  the 
constitutional  provision  would  not  fully  accomplish  its  intent. 
The  general  prohibition  upon  the  States  against  levying  duties 
on  imports  or  exports  would  have  been  ineffectual  if  it  had  not 
been  extended  to  duties  on  the  ships  which  serve  as  the  vehicles 
of  conveyance.  This  extension  was  doubtless  intended  by  the 
prohibition  of  any  duty  of  tonnage.  It  was  not  only  a  pro  rata 
tax  which  was  prohibited,  but  any  duty  on  the  ship,  whether  a 
fixed  sum  upon  its  whole  tonnage,  or  a  sum  to  be  ascertained  by 
comparing  the  amount  of  tonnage  with  the  rate  of  duty. 

In  this  view  of  the  case,  the  levy  of  the  tax  in  question  is  ex- 
pressly prohibited.  .  .  . 

Reversed. 


WOODRUFF  V.   PARHAM. 
Supreme  Court  of  the  United  States.     1869. 

[8  Wallace,  123.]  ^ 

Error  to  the  Supreme  Court  of  Alabama. 

In  the  Circuit  Court  of  Mobile  County  Woodruff  and  Parker, 
a  firm  of  auctioneers,  brought  action  against  Parham,  tax  collector 
of  the  city  of  Mobile,  for  wrongfully  taking  goods.  The  city,  in 
accordance  with  its  charter,  had  imposed  a  tax  on  real  and  per- 
sonal estate,  auction  sales  and  sales  of  merchandise,  capital 
employed  in  business  and  income  wdthin  the  city;  and  the  firm, 
having  sold,  as  auctioneers  and  commission  merchants,  goods 
brought  from  other  States  and  sold  at  wholesale  in  the  original 
packages,  claimed  freedom  from  liability  as  to  the  tax  on  these 
sales.  Judgment  was  rendered  for  the  defendant  and  was  affirmed 
by  the  Supreme  Court  of  Alabama. 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


WOODRUFF  V.   PARHAM.  937 

J.  A.  Campbell  and  another,  for  plaintiffs  in  error;  and 
P.  Phillips,  contra. 
Miller,  J.,  delivered  the  opinion  of  the  court. 
The  case  was  heard  by  the  court  of  the  State  of  Alabama  upon 
an  agreed  statement  of  facts,  and  that  statement  fully  raises  the 
question  whether  merchandise  brought  from  other  States  and 
sold,  under  the  circumstances  stated,  comes  within  the  prohibi- 
tion of  the  Federal  Constitution,  that  no  State  shall,  without  the 
consent  of  Congress,  le\T  any  imposts  or  duties  on  imports  or 
exports.  And  it  is  claimed  that  it  also  brings  the  case  within  the 
principles  laid  do\\Ti  by  this  court  in  Brown  v.  Maryland. 

The  tax  of  the  State  of  Maryland,  which  was  the  subject  of 
controversy  in  that  case,  was  limited  by  its  terms  to  importers  of 
foreign  articles  or  commodities,  and  the  proposition  that  Ave  are 
now  to  consider  is  whether  the  provision  of  the  Constitution  to 
which  we  have  referred  extends,  in  its  true  meaning  and  intent, 
to  articles  brought  from  one  State  of  the  Union  into  another. 

The  words  impost,  imports,  and  exports  are  frequently  used  in 
the  Constitution.  They  have  a  necessary  correlation,  and  when 
we  have  a  clear  idea  of  what  either  word  means  in  any  partic- 
ular connection  in  which  it  may  be  found,  we  have  one  of  the  most 
satisfactory  tests  of  its  definition  in  other  parts  of  the  same 
instrument. 

In  the  case  of  Brown  v.  Maryland,  the  word  imports,  as  used 
in  the  clause  now  under  consideration,  is  defined,  both  on  the 
authority  of  the  lexicons  and  of  usage,  to  be  articles  brought  into 
the  country;  and  impost  is  there  said  to  be  a  duty,  custom,  or 
tax  levied  on  articles  brought  into  the  country.  In  the  ordinary 
use  of  these  terms  at  this  day,  no  one  would,  for  a  moment,  think 
of  them  as  having  relation  to  any  other  articles  than  those  brought 
from  a  country  foreign  to  the  United  States,  and  at  the  time  the 
case  of  Brown  v.  Maryland  was  decided  —  namely,  in  1827  —  it 
is  reasonable  to  suppose  that  the  general  usage  was  the  same,  and 
that  in  defining  imports  as  articles  brought  into  the  country,  the 
Chief  Justice  used  the  word  country  as  a  synonym  for  United 
States. 

But  the  word  is  susceptible  of  being  applied  to  articles  intro- 
duced from  one  State  into  another,  and  we  must  inquire  if  it  was 
so  used  by  the  framers  of  the  Constitution. 

Leaving,  then,  for  a  moment,  the  clause  of  the  Constitution 
under  consideration,  we  find  the  first  use  of  any  of  these  correla- 
tive terms  in  that  clause  of  the  eighth  section  of  the  first  article, 


938       commerce:   decisions  since  close  of  civil  war. 

which  begins  the  enumeration  of  the  powers  confided  to  Con- 
gress. 

"The  Congress  shall  have  power  to  levy  and  collect  taxes,  duties, 
imposts,  and  excises,  .  .  .  but  all  duties,  imposts,  and  excises 
shall  be  uniform  throughout  the  United  States." 

Is  the  word  impost,  here  used,  intended  to  confer  upon  Con- 
gress a  distinct  power  to  levy  a  tax  upon  all  goods  or  mercliandise 
carried  from  one  State  into  another?  Or  is  the  power  limited  to 
duties  on  foreign  imports?  If  the  former  be  intended,  then  the 
power  conferred  is  curiously  rendered  nugatorj-  by  the  subse- 
quent clause  of  the  ninth  section,  which  declares  that  no  tax  shall 
be  laid  on  articles  exported  from  any  State,  for  no  article  can  be 
imported  from  one  State  into  another  which  is  not,  at  the  same 
time,  exported  from  the  former.  But  if  we  give  to  the  word  im- 
posts, as  used  in  the  first-mentioned  clause,  the  definition  of 
Chief  Justice  Marshall,  and  to  the  word  export  the  corresponding 
idea  of  something  carried  out  of  the  United  States,  we  have,  in 
the  power  to  lay  duties  on  imports  from  abroad,  and  the  prohi- 
bition to  lay  such  duties  on  exports  to  other  countries,  the  power 
and  its  limitations  concerning  imposts. 

It  is  also  to  be  remembered  that  the  Convention  was  here  giving 
the  right  to  lay  taxes  by  National  authority  in  connection  with 
paying  the  debts  and  jiroviding  for  the  common  defence  and  the 
general  welfare,  and  it  is  a  reasonable  inference  that  they  had  in 
view,  in  the  use  of  the  word  imports,  those  articles  which,  being 
introduced  from  other  nations  and  diffused  generally  over  the  coun- 
try for  consumption,  would  contribute,  in  a  common  and  general 
way,  to  the  support  of  the  National  government.  If  internal 
taxation  should  become  necessary,  it  was  provided  for  by  the  terms 
taxes  and  excises. 

There  are  two  provisions  of  the  clause  under  which  exemption 
from  State  taxation  is  claimed  in  this  case,  which  are  not  without 
influence  on  that  prohibition,  namely:  that  any  State  may,  with 
the  assent  of  Congress,  lay  a  tax  on  imports,  and  that  the  net  prod- 
uce of  such  tax  shall  be  for  the  benefit  of  the  Treasury  of  the 
United  States.  The  framers  of  the  Co^nstitution,  claiming  for  the 
general  government,  as  they  did,  all  the  duties  on  foreign  goods 
imported  into  the  country,  might  well  permit  a  State  that  wished 
to  tax  more  heavily  than  Congress  did,  foreign  liquors,  tobacco, 
or  other  articles  injurious  to  the  community,  or  which  interfered 
with  their  domestic  policy,  to  do  so,  provided  such  tax  met  the 
approbation  of  Congress,  and  was  paid  into  the  Federal  treasury. 


WOODRUFF  V.   PARHAM.  939 

But  that  it  was  intended  to  permit  such  a  tax  to  be  imposed  by 
such  authority  on  the  products  of  neighboring  States  for  the  use 
of  the  Federal  government,  and  that  Congress,  under  this  temp- 
tation, was  to  arbitrate  between  the  State  which  proposed  to  levy 
the  tax  and  those  which  opposed  it,  seems  altogether  improbable. 

Yet  this  must  be  tha  construction  of  the  clause  in  question  if  it 
has  any  reference  to  goods  imported  from  one  State  into  another. 

If  we  turn  for  a  moment  from  the  consideration  of  the  lan- 
guage of  the  Constitution  to  the  history  of  its  formation  and 
adoption,  we  shall  find  additional  reason  to  conclude  that  the 
words  imports  and  imposts  were  used  with  exclusive  reference  to 
articles  imported  from  foreign  countries. 

Section  three,  article  six,  of  the  Confederation  provided  that 
no  State  should  lay  imposts  or  duties  which  might  interfere  with 
any  stipulation  in  treaties  entered  into  by  the  United  States;  and 
section  one,  article  nine,  that  no  treaty  of  commerce  should  be  made 
whereby  the  legislative  power  of  the  respective  States  should  be 
restrained  from  imposing  such  imposts  and  duties  on  foreigners 
as  their  own  people  were  subjected  to,  or  from  prohibiting  the 
exportation  or  importation  of  any  species  of  goods  or  commodi- 
ties whatsoever.  In  these  two  articles  of  the  Confederation,  the 
words  imports,  exports,  and  imposts  are  used  with  exclusive  refer- 
ence to  foreign  trade,  because  they  have  regard  only  to  the  treaty- 
making  power  of  the  federation. 

As  soon  as  peace  was  restored  by  the  success  of  the  Revolution, 
and  commerce  began  to  revive,  it  became  obvious  that  the  most 
eligible  mode  of  raising  revenue  for  the  support  of  the  general 
government  and  the  payment  of  its  debts  was  b}^  duties  on  foreign 
merchandise  imported  into  the  country.  .  .  .  And  the  discus- 
sions of  the  Congress  of  that  day  .  .  .  are  full  of  the  subject  of 
the  injustice  done  by  the  States  who  had  good  seaports,  by  duties 
levied  in  those  ports  on  foreign  goods  designed  for  States  who  had 
no  such  ports. 

In  this  state  of  public  feeling  in  this  matter,  the  Constitutional 
Convention  assembled. 

Its  very  first  grant  of  power  to  the  new  government  about  to  be 
established,  was  to  lay  and  collect  imposts  or  duties  on  foreign 
goods  imported  into  the  country,  and  among  its  restraints  upon 
the  States  was  the  corresponding  one  that  they  should  lay  no 
duties  on  imports  or  exports.  .  .  . 

So  far  as  our  research  has  extended,  neither  the  word  export,  im- 
port, or  impost  is  to  be  found  in  the  discussions  on  this  subject, 


940       commerce:   decisions  since  close  of  civil  wah. 

as  they  have  come  down  to  us  from  that  time,  in  rrfcreiiee  to  any 
other  than  foreign  commerce,  without  some  special  form  <»f  words 
to  show  that  foreign  commerce  is  not  meant.  .  .  . 

Whether  we  look,  then,  to  the  terms  of  the  clause  of  the  Con- 
stitution in  question,  or  to  its  relation  to  the  other  parts  of  that 
instrument,  or  to  the  history  of  its  formation  and  adoption,  or  to 
the  comments  of  the  eminent  men  who  t<M»k  part  in  those  trans- 
actions, we  are  forced  to  the  conclusion  that  no  intention  existed 
to  prohibit,  by  this  clansc,  the  right  of  one  State  to  tax  articles 
brought  into  it  from  another.  If  we  examine  for  a  m«)ment  the 
results  of  an  opposite  doctrine,  we  shall  be  well  satisfied  with  the 
wisdom  of  the  Constitution  a.s  thus  construed. 

The  merchant  of  Chicago  who  buys  his  goods  in  New  York  and 
sells  at  wholesale  in  the  original  packages,  may  have  his  millions 
employed  in  trade  for  half  a  lifetime  and  escape  all  State,  county, 
and  city  taxes;  for  all  that  he  is  worth  is  invested  in  g(x>tls  which 
he  claims  to  be  protected  as  imports  from  New  York.  Neither 
the  State  nor  the  city  which  protects  his  life  antl  proi)orty  can 
make  him  contribute  a  dollar  to  support  its  government,  im- 
prove its  thoroughfares  or  educate  its  children.  The  merchant 
in  a  town  in  Massachusetts,  who  deals  only  in  wholesale,  if  he 
purchase  his  goods  in  New  York,  is  exempt  from  taxation.  If  his 
neighbor  i)urcha.se  in  Boston, he  must  pay  all  the  taxes  which  Mas- 
sachusetts levies  with  equal  justice  on  the  projxTty  of  all  its 
citizens. 

These  cases  are  merely  mentioned  as  illustrations.  But  it  is 
obvious  that  if  articles  brought  from  one  State  into  another  are 
exempt  from  taxation,  even  under  the  limited  circumstances  laid 
do\^^l  in  the  case  of  Browni  /'.  Maryland,  the  grossest  injustice 
must  prevail,  and  equality  of  public  burdens  in  all  our  large  cities 
is  impossible.  .  .  . 

The  case  of  Bro^\^l  v.  Maryland,  as  we  have  already  said,  arose 
out  of  a  statute  of  that  State,  taxing,  by  way  of  discrimination, 
importers  who  sold,  by  wholesale,  foreign  goods. 

Chief  Justice  Marshall,  in  dehvering  the  opinion  of  the  court, 
distinctly  bases  the  invalidity  of  the  statute,  (1)  On  the  clause  of 
the  Constitution  which  forbids  a  State  to  le\3'  imposts  or  duties  on 
imports;  and  (2)  That  which  confers  on  Congress  the  power  to  reg- 
ulate commerce  with  foreign  nations,  among  the  States,  and  ^vith 
the  Indian  tribes. 

The  casual  remark,  therefore,  made  in  the  close  of  the  opinion, 
"that  we  suppose  the  principles  laid  do^vn  in  this  case  to  apply 


WOODRUFF  V.    PARHAM.  941 

equally  to  importations  from  a  sister  State,"  can  only  be  received 
as  an  intimation  of  what  they  might  decide  if  the  case  ever  came 
before  them,  for  no  such  case  was  then  to  be  decided.  It  is  not, 
therefore,  a  judicial  decision  of  the  question,  even  if  the  remark  was 
intended  to  apply  to  the  first  of  the  grounds  on  which  that  deci- 
sion was  placed. 

But  the  opinion  in  that  case  discusses,  as  we  have  said,  under 
two  distinct  heads,  the  two  clauses  of  the  Constitution  which  he 
supposed  to  be  violated  by  the  Maryland  statute,  and  the  remark 
above  quoted  follows  immediately  the  discussion  of  the  second 
proposition,  or  the  applicability  of  the  commerce  clause  to  that 
case. 

If  the  court  then  meant  to  say  that  a  tax  levied  on  goods  from  a 
sister  State  which  was  not  levied  on  goods  of  a  similar  character 
produced  wthin  the  State,  would  be  in  conflict  with  the  clause  of 
the  Constitution  giving  Congress  the  right  ''to  regulate  commerce 
among  the  States,"  as  much  as  the  tax  on  foreign  goods,  then 
under  consideration,  was  in  conflict  with  the  authority  "to  reg- 
ulate connnerce  ^vith  foreign  nations,"  we  agree  to  the  propo- 
sition. .  .  . 

The  case  before  us  is  a  simple  tax  on  sales  of  merchandise,  im- 
posed alike  upon  all  sales  made  in  Mobile,  whether  the  sales  be 
made  by  a  citizen  of  Alabama  or  of  another  State,  and  whether  the 
goods  sold  arc  the  produce  of  that  State  or  some  other.  There  is 
no  attempt  to  discriminate  injuriously  against  the  products  of 
other  States  or  the  rights  of  their  citizens,  and  the  case  is  not, 
therefore,  an  attempt  to  fetter  commerce  among  the  States,  or 
to  deprive  the  citizens  of  other  States  of  any  pri\alege  or  immun- 
ity possessed  by  citizens  of  Alabama.  But  a  law  having  such  oper- 
ation would,  in  our  opinion,  be  an  infringement  of  the  provisions 
of  the  Constitution  which  relate  to  those  subjects,  and  therefore 
void.  .  .  . 

Judgment  affirmed} 

Nelson,  J.,  dissenting.  .  .  . 

1  See  Brown  v.  Houston,  114  U.  S.  622  (1885).  — Ed. 


942      commerce:   decisions  since  close  of  civil  war. 

PAUL  V.   VIRGINIA. 
Supreme  Court  of  the  United  States.  1869. 

[8  Wallace,  168.) ' 

Error  to  the  Supreme  Court  of  App<'al.s  of  \'irginia. 

In  the  Circuit  Court  of  Petersl)urg,  Paul,  a  resident  of  Virginia, 
was  indicted  for  acting  as  agent  of  New  York  fire  insurance  cor- 
porations in  issuing  and  offering  to  issue  insurance  policies  in  disre- 
gard of  Mrginia  statiites  which  prohil^tecl  insurance ^■om^aniesjpt 
infw^yp^Y£^vl_in  th^^State  fronicarrvintr  on_husines.s  thereiiuuli  \  - 
r>irf_dpj>ositinor  a])pr()Ved  honds  to  an  amount  ranging  fn )m 
$3iLQQai»-$»a,09Q,  according  to  tlie  capital  employed,  andohtiun- 
m^  q,  jjppnse,  and  prohibited  any  one,  under  a  penalty  of  from^O 
to  $500,  to  act  without  a  license  a.s  agent  for  a  foreign  insurance 
company.  He  was  convicted  and  sentenced  to  p{i\-  a  fine  of  $.">0. 
TI;c^ judgment  was  atlinncd  hy  tite  Supreme  Court  of  .Vm^j'als, 
an  imsuccessiul  contention  having  heen  hascd  on  the  Constitu- 
tion of  the  United  States,  art.  IV.,  sect.  2,  clause  1,  and  art.  I., 
sect.  8,  clause  3. 

B.  R.  Curtis  and  J.  M.  Carlisle,  for  plaintiff  in  error;  and 
C.  Robinson  and  R.  Boivden,  contra. 

Field,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  answer  which  readily  occurs  to  the  objection  founded  upon 
the  first  clause  consists  in  the  fact  that  corporations  are  not 
citizens  Avithin  its  meaning.  The  term  citizens  as  there  used 
applies  only  to  natural  persons,  members  of  the  body  politic,  owing 
allegiance  to  the  State,  not  to  artificial  persons  created  by  the 
legislature,  and  possessing  only  the  attributes  which  the  legisla- 
ture has  prescribed.  It  is  true  that  it  has  been  held  that  where 
contracts  or  rights  of  property  are  to  be  enforcfnl  by  or  against  cor- 
porations, the  courts  of  the  United  States  will,  for  the  purpose  of 
maintaining  jurisdiction,  consider  the  corporation  as  representing 
citizens  of  the  State  under  the  laws  of  which  it  is  created,  and  to 
this  extent  will  treat  a  corporation  as  a  citizen  within  the  clause 
of  the  Constitution  extending  the  judicial  power  of  the  United 
States  to  controversies  between  citizens  of  different  States.  .  .  .^ 

^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 

2  Citing  Hope  Ins.  Co.  v.  Boardman,  5  Cranch,  57  (1809);  Louisville,  C.  & 
C.  R.  Co.  V.  Letson,  2  How.  497  (1844);  Marshall  v.  B.  &  0.  R.  Co.,  16  Id. 
314  (1853);  Covington  Drawbridge  Co.  v.  Shepherd,  20  Id.  227,  233  (1857); 
and  Ohio  &  Mississippi  R.  Co.  v.  WTieeler,  1  Black,  286,  297  (1861).  —  Ed. 


PAUL  V.  VIRGINIA.  943 

But  in  no  case  which  has  come  under  our  observation,  either 
in  the  State  or  Federal  courts,  has  a  corporation  been  considered 
a  citizen  within  the  meaning;  ot  that  provision  of  the  CQnstitF 
tion^'hich  declares  that  the  citizens  of  each  State  shall  be  enti- 
tjed  to  all  the  privileges  and  immunities  of  citizens  of  the  several 

States.  •  •  -^ 

It  was  undoubtedly  the  object  of  the  clause  in  question  to 
place  the  citizens  of  each  State  upon  the  same  footing  with  citizens 
of  other  States,  so  far  as  the  advantages  resulting  from  citizen- 
ship in  those  States  are  concerned.  It  relieves  them  from  the  dis- 
al)ilities  of  alienage  in  other  States;  it  inhibits  discriminating 
legislation  against  them  by  other  States;  it  gives  them  the  right 
of  free  ingress  into  other  States,  and  egress  from  them;  it  insures 
to  them  in  other  States  the  same  freedom  possessed  by  the  citi- 
zens of  those  States  in  the  acquisition  and  enjoyment  of  property 
and  in  the  pursuit  of  happiness;  and  it  secures  to  them  in  other 
States  the  equal  protection  of  their  laws.  It  has  been  justly  said 
that  no  provision  in  the  Constitution  has  tended  so  strongly  to 
constitute  the  citizens  of  the  United  States  one  people  as  this. 
Lemmon  v.  The  People,  20  N.  Y.  607. 

Indeed,  without  some  provision  of  the  kind  removing  from 
the  citizens  of  each  State  the  disabilities  of  alienage  in  the  other 
States,  and  giving  them  equality  of  privilege  with  citizens  of  those 
Sfa!es,  the  Republic  would  have  constituted  little  more  than"  a 
league  of  States;  it  would  not  have  constituted  the  Union  which 
now  exists. 

But  tli<'  privileges  and  immunities  secured  to  citizens  of  each 
State  in  the  several  States,  Vjy  the  provision  in  question,  are  those 
privileges  and  immunities  which  are  common  to  the  citizens  in 
the  latter  States  under  their  constitution  and  laws  by  virtue  of  their 
being  citizens.  Special  privileges  enjoyed  by  citizens  in  their  own 
States  are  not  secured  in  other  States  by  this  provision.  Xt^was^ 
not  intended  by  the  provision  to  give  to  the  laws  of  one  State  any 
operation  in  other  States.  They  can  have  no  such  operation,  except 
by  the  permission,  express  or  implied^  of  those  States.  The  spe-" 
cial  privileges  which  they  confer  must,Jhprpfnrp,  he  enjoyed  at 
honu',  unless  the  assent  of  other  States  tolheirTnioyTTiPnt  therein 
be  given. 

NQw"a  grant  of  corporate  existence  is  a  grant  of  special  privileges 
to  the  corporators,  enabling  them  to  act  for  certain  designated 

•  Citing  Bank  of  Augusta  i-.  Earle,  13  Pet.  519,  586  (1839);  and  Bank  of 
the  United  States  v.  Deveaux,  5  Cranch,  61  (1809).  —  Ed. 


944       commerce:    decisions  since  close  ok  <  imi.  \s  \\i. 

purposes  as  a  single  individual,  and  excniptinK  them  (unless 
otherwise  specially  provided)  from  individual  liahility.  The  corpo- 
ration  being  the  merecrcajion  <.)f  Itfeal  law,  can  have  no  Ic^^ajTxPt- 
pnre  beyond  the  limits  of  the  sovereignty  where  created.  As  said 
bjTthis  court  in  Bank  of  Augusta  v.  Earle,  "It  must  dwell  in  the 
place  of  its  creation,  and  cannot  migrate  to  another  sovereignty." 
The  recognition  of  its  existence  even  by  other  States,  and  the 
enforcement  of  its  contracts  made  therein,  depend  purely  upon 
the  comity  of  those  States  —  a  comity  which  is  never  extended 
where  the  existence  of  the  corporation  or  the  exercise  of  its  powers 
are  prejudicial  to  their  interests  or  repugnant  to  their  policy.  Hav- 
ing no  absolute  right  of  recognition  in  other  States,  but,  de- 
pending for  such  recognition  and  the  enforcement  of  its  contracts 
upon  their  assent,  it  follows,  as  a  matter  of  course,  that  such 
assent  may  be  granted  upon  such  terms  and  conditions  as  those 
States  may  think  proper  to  impose.  They  may  exclude  the  foreign 
corporation  entirely;  they  may  restrict  its  business  to  particular 
localities,  or  they  may  exact  such  security  for  the  performance  of  its 
contracts  with  their  citizens  as  in  their  judgment  will  best  promote 
the  public  interest.    The  whole  matter  rests  in  their  discretion. 

If  on  the  other  hand,  t]!^^  prnvi>^lx.»n  nf  ♦4hi  r\institiitinn  conld 
be  construed  to  secure  to  citizens  of  each  Stateju  other  States  the 
peculiar  privileges  confernjrby  their  laws,  an  (■xtrakrritorial 
operation  would  be  given  to  local  legislutloii  uJUjdydriTnK,-tive 
of  tlie  independence  and  the  harniony  of  the  States.  At  the  pre.s- 
ent  da^orporations  arc  multiplied  to  an  almost  indefinite  extent. 
There  is  scarcely  a  business  pursued  requiring  the  expenditure  of 
large  capital,  or  the  union  of  large  numbers,  that  is  not  carried  on 
by  corporations.  It  is  not  too  much  to  say  that  the  wealth  and 
business  of  the  country  are  to  a  great  extent  controlled  by  them. 
And  if,  when  composed  of  citizens  of  one  State,  their  corporate 
powers  and  franchises  could  be  exercised  in  other  States  without 
restriction,  it  is  easy  to  see  that,  with  the  advantages  thus  pos- 
sessed, the  most  important  business  of  those  States  would  soon 
pass  into  their  hands.  The  principal  business  of  every  State  would, 
in  fact,  be  controlled  by  corporations  created  by  other  States. 

If  the  right  asserted  of  the  foreign  enrpnrf^iinT),  w-hen  composed 
ofcitizens  ot  one  State,  to  transact  business  in  oUier  Statesjvere 
even  restricfed  to  sneh  hii.'^jnPj^,^  ps;  pf^ypori^tionTof  ihoie  States 
were  authorized  to  transact,  it  would  still  follow  that  thoseStates 
would  be  unable  to  limit  the  iiTiiTlbEr"ofcQri  ^oi  n  i  ii  hil  fi^^^;^  niinir^° 
therein.     Itiey  could  not  charter  a  company  for  any  purpose,  how- 


PAUL  V.  VIRGINIA.  945 

ever  restricted,  without  at  once  opening  the  door  to  a  flood  of  cor- 

cotild  iiuL  repel  an  intruding  corporation,  except  on  the  condi- 
tion of  refusing  incorporation  for  a  similar  purpose  to  their  own 
citizens;  and  yet  it  might  be  of  the  highest  pubUc  interest  that 
the  number  of  corporations  in  the  State  should  be  hmited;  that 
they  should  be  required  to  give  publicity  to  their  transactions; 
to  submit  their  affairs  to  proper  examination;  to  be  subject  to  for- 
feiture of  their  corporate  rights  in  case  of  mismanagement,  and 
that  their  officers  should  be  held  to  a  strict  accountability  for  the 
manner  in  which  the  business  of  the  corporations  is  managed,  and 
be  haljle  to  summary  removal. 

"It  is  impossible,"  to  repeat  the  language  of  this  court  in  Bank 
of  Augusta  V.  Earle,  "upon  any  sound  principle,  to  give  such  a 
construction  to  the  article  in  question,"  — a  construction  which 
would  lead  to  results  like  these. 

We  proceed  to  the  scj^mdobjection  urged  to  the  validity  of  the 
Virginia  statute,  which  is  fouHdecTupon  the  commercial  clause~of 
the^'onstitutioii.  It  is  undoubtedly  true,  a's  statedlDy  counsel,  that 
the  power  conferred  upon  Congress  to  regulate  commerce  includes 
as  well  commerce  carried  on  by  corporations  as  commerce  carried 
on  by  individuals.  At  the  time  of  the  formation  of  the  Constitution 
a  large  part  of  the  commerce  of  the  world  was  carried  on  by  cor- 
porations. The  East  India  Company,  the  Hudson's  Bay  Com- 
pany, the  Hamburgh  Company,  the  Levant  Company,  and  the 
Virginia  Company,  may  be  named  among  the  many  corporations 
then  in  existence  which  acquired,  from  the  extent  of  their  opera- 
tions, celel)rity  throughout  the  commercial  world.  This  state 
of  facts  forbids  the  supposition  that  it  was  intended  in  the  grant 
of  power  to  Congress  to  exclude  from  its  control  the  commerce  of 
corporations.  T_hcknguage  of  the  grant  makes  no  reference  to 
the  in.strumentalitieinjv  which  commerrp  may  ha  ^arimlon;  it  is 
general,  and  includes  alike  commerce  by  individuals,  partnerships. 

associations,   and   Porporntinri';! 

There  is,  therefore,  nothing  in  the  fact  that  the  insurance  com- 
panies of  New  York  are  corporations  to  impair  the  force  of  the 
argument  of  counsel.  The  defect  of  the  argument  lies  in  the 
character  of  their  business.  Issuing  a  policy  of  insurance  is  not  a 
transaction  of  commerce.  The  policies  are  simple  contracts  of  in- 
deranity  against  loss  by  fire,  entered  into  between  the  corporations 
and  the  assured,  for  a  consideration  paid  by  the  latter.  These  con- 
tracts  are  not  articles  of  commerce  in  any  proper  meaning~orT!]F 


946       commerce:   decisions  since  close  of  civil  war. 

word.  They  are  not  subjects  of  trade  and  barter  offered  in  the 
i^I^l^t  as  something  having  an  existence  and  vahie  indepenih-nt  of 
the  parties  to  them.  They  are  not  commodities  to  l)e  siiii)i)('d  or 
forwarded  from  one  State  to  another,  and  then  put  up  for  sale. 
They  are  Hkc  other  personal  contracts  between  parties  which  are 
completed  by  their  signature  and  the  transfer  of  the  consideration. 
Such  contracts  arenotjnterstate  transac^ions^t  hough  thejpar- 
ties  may  be  domiciled  in  diff(Tent  States.  Th(>  policies  doTiot  take 
^ff^t  —  are  riOt  (^Xl'euUWl  I'Uiiti  ActB  mrtit  deliyeredl)ythe  agent 
in  Virginia.  They  are,  then,  local  transact ions7and  afe  governed 
by  the  local  law.  They  do  not  constitute  a  part  of  the  commerce 
between  the  States  anv  more  than  a  contract  for  the  purchase  and 
safe  of  goodsin  Virginia  by  a  citi2en_j^L^Niav  York  whikLiiuViis 
'^inia  would  constitute  a  portion  of  such  commerce.  .  .  .^ 

Affirmed.^ 


THE  DANIEL  BALL. 
Supreme  Court  of  the  United  States.     187L 

[10  Wallace,  557.] ' 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Michigan. 

In  the  District_Court_oLiti£-IMted  States  for  the  Western 
DTsIrlcT'of  Michigan,  the  United  States  filed  a  libel  against  the 
Daniel  Ball  to  recover  the  penalty  for  navigating  Gi:and_  River, 
Michigan,  between  Grand  Rapids  and  GrandHaven^nd  trans- 
poftmg  nierchandise  and  passengers  between  those  places^jjathoiiL. 
the  inspection  and  license  i)rescribed  by  the  fi-diiLd  statutes 
(5  ^at.  304  and^lO  Id.  61)  for  steamboats  transporting^ierchan- 
dise  or  passengers  upon  "the  bays,  lakes,  rivers,  or_other  navigable^ 
waters  of  the  United  Slates:^  it  was  admitted  by  stipulation  of 
the^artiesthat  the  steamer  was  employed  as  alleged  and  was  not 
enrolled  and  licensed  for  the  coasting  trade,  that  some  of  the  goods 
shipped  at  Grand  Rapids  and  carried  to  Grand  Haven  were  des- 

1  Citing  Nathan  v.  Louisiana,  ante,  p.  911  (1850).  —  Ed. 

2  As  to  insurance  see  Hooper  v.  California,  155  U.  S.  648  (1895);  and  New 
York  Life  Ins.  Co.  v.  Cravens,  178  U.  S.  389  (1900).  —  Ed. 

'  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


THE   DANIEL  BALL.  947 

tined  and  marked  for  places  in  other  States  than  Michigan,  and 
some  of  the  goods  shipped  at  Grand  Haven  came  from  other  States 
and  were  destined  for  places  in  that  State,  that  the  vessel  was  in- 
capable of  navigating  Lake  Michigan,  and  that  the  vessel  did  not 
run  in  connection  with  any  line  of  vessels  on  the  lake  or  any  rail- 
way, though  there  were  hnes  of  vessels  between  Grand  Haven  and 
other  States  and  there  was  a  railway  from  Detroit  to  both  Grand 
Haven  and  Grand  Rapids.  The  District  Court  dismissed  the 
libel;  andjhe  Circuit  Court  reverseg^'CEr-decislon  and  gave  a 
decree  for  the  penalty. 

XTT.  McReynolds,  for  appellants;  and  Bristaw,  SoUcitor  Gen- 
eral, contra. 

Field,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Tw^^ueglions  are  presented  in  this  case  for  our  determination. 

FirstTWhet^er  the  steamer  was  at  the  time  designated  in  the 
libcl_engaged  in  transporting  merchandise  and  passengers  on^a. 
navigable  water  of  the  United  States  within  themeaning  of  the 
arts  of  CorigTpg;s-  and, 

Second:  Whether  those  acts  are  applicable  to  a  steamer  en- 
gaged as  a  common_carrier  between  places  in  the  same  State, 
when  a  portion  of  the  merchandise  transported  by  her  is  destined 
to1)laces  m  other  States,  or  comes  from  places  without  the  State, 
she  not  runmngmconnection  with  or  in  f^nntiTmatmn  nf  ptr|£jin^ 
of  stgSmers"or  otEeFvessels,  or  any  railway  line  leadingto  or  from 
ti^ther  State.  ~~~"  ^ 

Upon  the  first  of  these  questions  we  entertain  no  doubt.  The 
doctrine  of  the  common  law  as  to  the  na\'igability  of  waters  has 
no  application  in  this  country.  Here  the  ebb  and  flow  of  the  tide 
do  not  constitute  the  usualtest,  aslrTEnglana,  or  any  test  at  all 
of  the  navigabUity  ot  waters.^  .  .  . .  Those  rivers  must  be  re- 
garded as  public  llggtgablcjTvers  m  law  uJTJrhRrp  navigahlp  in 
fact.  And  they  are  navigable  in  fact  when  they~are  used,  or  are 
susceptible  of  being  used,  in  their  ordinary  condition,  as  highways 
for  commerce,  over  which  trade  and  travel  are  or  may  be  con- 
ducted in  the  customary  modes  of  trade  and  travel  on  water. 
And  they  constitute  navigable  waters  of  the  United  States  within 
the_meaning  ol  the  acts  ot  Congress,  in  contradistinction  from 
the  navigable  waters  of  the  States^when  they  form  in  their  ordi- 
naj;v_condition  by  themselves,  or  by  uniting  with  other  waters,  a 
continued  highway  over  which  commerce  is  or  may  be  carried  on 

»  Citing  The  Genesee  Chief  v.  Fitzhugh,  12  How.  443,  457  (1851);  and 
Hine  v.  Trevor,  4  Wall.  555  (1867).  — Ed. 


948      commerce:   decisions  since  close  of  civil  war. 

with  other  States  orjoreign  countries  in  the  customary  modes  in 
>vhif^uch_commerce  is  conduct edjhy  water. 

irwTapply  this  test  to  Grand  River,  the  conclusion  follows  that 
it  must  be  regarded  as  a  navigable  water  of  the  United  States. 
From  the  conceded  facts  in  the  case  the  stream  is  cai)able  of  bear- 
ing a  steamer  of  one  hundred  and  twenty-three  tons  burden,  laden 
with  merchandise  and  passengers,  as  far  as  Grand  Rapids,  a  dis- 
tance of  forty  miles  from  its  mouth  in  Lake  Michigan.  And  by 
its  junction  with  the  lake  it  forms  a  continued  highway  for  com- 
merce, both  with  other  States  and  with  foreign  countries,  and  is 
thus  brought  under  the  direct  control  of  Congress  in  the  exercise 
of  its  commercial  power. 

That  power  authorizes  all  appropriate  legislation  for  the  pro- 
tection or  advancement  of  either  interstate  or  foreign  commerce, 
and  for  that  purpose  such  legislation  as  will  insure  the  convenient 
and  safe  navigation  f)f  all  the  navigai)le  waters  of  the  United 
States,  whether  that  legislation  consists  in  requiring  the  removal 
of  obstructions  to  their  use,  in  prescribing  the  form  and  size  of 
the  vessels  employed  upon  them,  or  in  subjecting  the  ves.sels  to 
inspection  and  license,  in  order  to  insure  their  proper  construction 
and  equipment.  "The  ])()wer  to  regulat<>  connnerce."  this  court 
said  in  Gilman  v.  Philadeli)hia,  3  Wallace,  724,  "comprehends  the 
control  for  that  purpose,  and  to  the  extent  necessary,  of  all  naviga- 
ble waters  of  the  United  States  which  are  accessible  from  a  State 
other  than  those  in  which  they  lie.  P'or  this  pur])ose  they  are  the 
public  property  of  the  nation,  and  subject  to  all  the  requisite 
legislation  of  Congress." 

But  it  is  contended  that  the  steamer  Daniel  Bull  was  only  en- 
gaged in  the  internal  commerce  of  the  State  of  Michigan,  and 
was  not,  therefore,  required  to  be  inspected  or  licensed,  even  if  it 
be  conceded  that  Grand  River  is  a  navigable  water  of  the  United- 
States;  and  this  brings  us  to  the  consideration  of  the  second 
question  presented. 

There  is  undoubtedly  an  internal  commerce  which  is  subject 
to  the  control  of  the  States.  The  power  delegated  to  Congress  is 
limited  to  commerce  "among  the  several  States,"  ^\^th  foreign 
nations,  and  with  the  Indian  tribes.  This  limitation  necessarily 
excludes  from  Federal  control  all  commerce  not  thus  designated, 
and  of  course  that  commerce  which  is  carried  on  entirely  within 
the  limits  of  a  State,  and  does  not  extend  to  or  affect  other  States. 
Gibbons  v.  Ogden,  9  Wheaton,  194,  195.  In  this  case  it  is  admitted 
that  the  steamer  was  engaged  in  shipping  and  transporting  down 


THE   DANIEL   BALL.  949 

Grand  River,  goods  destined  and  marked  for  other  States  than' 
Michigan,  and  in  receiving  and  transporting  up  the  river  goods 
brought  wnthin  the  State  from  without  its  Umits;  but  inasmuch  as 
her  agency  in  the  transportation  was  entirely  within  the  hmits  of 
thel^tate,  and  she  did  not  run  in  connection  with,  or  in  continua- 
tion  of,  any  hne  of  vessels  or  raihvay  leading  to  other  States,  it 
is  contended  that  she  was  engaged  entirely  in  domestic  commerce. 
But  this  conclusion  does  not  followT  So  far  as  she  was  employed 
in  transporting  goods  destined  for  other  States,  or  goods  brought 
from  without  the  limits  of  Michigan  and  destmed  to  places  withm 
that  State,  she  was  engaged  in  commerce  between  the  States, 
and  however  limited  that  commerce  may  have  been,  she  was,  so 
fai^^as  it  went,  subject  to  the  legislation  of  Congress.  She  was 
employed  as  an  instrumen^of  that  commerce ;  for  whenever  a  com- 
modity ha.s  begun  to  move  as  an  article  of  trade  from  one  State  to 
another,  commerce  in  that  commodity  between  the  States  has 
commenced.  The  fact  that  several  different  and  independent 
agencies  are  employed  in  transporting  the  commodity,  some  act- 
ing entirely  in  one  State,  and  some  acting  through  two  or  more 
States,  does  in  no  respect  affect  the  character  of  the  transaction. 
To  the  extent  in  which  each  agency  acts  in  that  transportation, 
it  is  subject  to  the  regulation  of  Congress. 

It  is  said  that  if  the  position  here  asserted  be  sustained,  there 
is  no  such  thing  as  the  domestic  trade  of  a  State;  that  Congress 
may  take  the  entire  control  of  the  commerce  of  the  country,  and 
extend  its  regulatioas  to  the  railroads  within  a  State  on  which 
grain  or  fruit  is  transported  to  a  distant  market. 

We  answer  that  the  present  case  relates  to  transportation  on 
the  navigable  waters  of  the  United  States,  and  we  are  not  called 
upon  to  express  an  opinion  upon  the  power  of  Congress  over  inter- 
state commerce  when  carried  on  by  land  transportation.  And  we 
answer  further,  that  we  are  unable  to  draw  any  clear  and^dis^ 
tinct  line  between  the  authority  of  Congress  to  regulate  an  agency 
employed  in  commerce  between  the  States,  when  that  agency 
extends  through  fwo  or  more  States,  and  when  it  is  confined  in 
ifs  action  r-ntiro1v  w-ithin  the  limits  of  a  sinfrle  State.  If  its  au- 
thority does  not  extend  to  an  agency  in  such  commerce,  when  that 
agency  is  confined  within  the  limits  of  a  State,  its  entire  authority 
over  interstate  commerce  may  be  defeated.  Several  agencies 
combining,  each  taking  up  the  commodity  transported  at  the 
boundary  line  at  one  end  of  a  State,  andleaving  it  at  the  boundary 
linelit  the  other  end,  the  Federal  jurisdiction"wouId  be  entirely 


950       commerce:   decisions  since  close  of  civil  war. 

ousted,  and  the  constitutional  provision  would  become  a  dead 

letter.  .  .  . 

Affirmed} 


LOW  V.   AUSTIN. 
Supreme  Court  of  the  United  States.     1872. 

[13  Wallace,  29.] « 

Error  to  the  Supreme  Court  of  California. 

In  a  District  Court  of  the  State,  Low  and  others,  commission 
merchants,  brought  action  against  Austin,  collector  of  taxes  for 
the  city  and  county  of  San  Francisco,  to  recover  taxes  paid  by 
them,  under  protest,  on  goods  which  they  had  received  from 
France  on  consignment  and  which  they  had  stored  in  the  ware- 
house in  the  original  cases,  the  duties  and  the  charges  of  the 
custom  house  having  been  paid.  The  assessment  had  been  made 
under  statutes  of  California  enacting  that,  with  certain  excep- 
tions, "all  property  of  every  kind,  name,  and  nature  whatsoever 
within  the  State"  should  be  subject  to  taxation  according  to 
value.  The  basis  of  the  protest  had  been  that  the  tax  was  in 
conflict  with  the  commerce  clause  of  the  Constitution.  The  Dis- 
trict Court  gave  judgment  for  the  plaintiffs;  but  the  judgment 
was  reversed  by  the  Supreme  Court  of  California. 

W.  A.  Fisher  and  others,  for  plaintiffs  in  error;  and  J.  Hamil- 
ton, Attorney  General  of  California,  contra. 

Field,  J.,  delivered  the  opinion  of  the  court. 

The  simple  question  presented  in  this  case  for  our  considera- 
tion is,  whether  imported  merchandise,  upon  which  the  duties 
and  charges  at  the  custom  house  have  been  paid,  is  sul)ject  to 
State  taxation,  whilst  remaining  in  the  original  cases,  unbroken 
and  unsold,  in  the  hands  of  the  importer. 

The  decision  of  this  court  in  the  case  of  Brown  v.  The  State  of 
Maryland,  12  Wheaton,  419,  furnishes  the  answer  to  the  ques- 
tion. The  distinction  between  that  case  and  the  present  case 
does  not  affect  the  principle  affirmed,  which  equally  governs 
both.  .  .  . 

1  See  The  Montello,  20  Wall.  430  (1874);    Ex  parte  Boyer,  109  U.  S.  629 
(1884);  The  Robert  W.  Parsons,  191  U.  S.  17  (1903).  —  Ed. 
^  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


LOW  V.  AUSTIN.  •  951 

The  reasons  advanced  ...  not  only  commend  themselves,  by 
their  intrinsic  force,  to  all  minds,  but  they  have  received  recog- 
nition and  approval  by  this  court  in  repeated  instances.  Mr. 
Chief  Justice  Taney,  who  was  at  the  time  eminent  at  the  bar,  as 
he  was  afterwards  eminent  on  the  bench,  argued  the  case  on 
behalf  of  the  State  of  Maryland;  and  in  the  License  Cases,  5 
Howard,  575,  he  referred  to  his  position  and  observed  that,  at 
that  time,  he  persuaded  himself  that  he  was  right,  and  thought 
that  the  decision  of  the  court  restricted  the  powers  of  the  State 
more  than  a  sound  construction  of  the  Constitution  of  the  United 
States  would  warrant.  "But  farther  and  more  mature  reflection," 
the  great  judge  added,  "has  convinced  me  that  the  rule  laid 
down  by  the  Supreme  Court  is  a  just  and  safe  one,  and  perhaps 
the  best  that  could  have  been  adopted  for  preserving  the  right 
of  the  United  States  on  the  one  hand,  and  of  the  States  on  the 
other,  and  preventing  collision  between  them.  The  question,  I 
have  already  said,  was  a  very  difficult  one  for  the  judicial  mind. 
In  the  nature  of  things  the  line  of  division  is,  in  some  degree, 
vague  and  indefinite,  and  I  do  not  see  how  it  could  be  drawn 
more  accurately  and  correctly,  or  more  in  harmony  with  the 
obvious  intention  and  object  of  this  provision  in  the  Constitu- 
tion. Indeed,  goods  imported,  while  they  remain  in  the  hands 
of  the  importer,  in  the  form  and  shape  in  which  they  were  brought 
into  the  country,  can,  in  no  just  sense,  be  regarded  as  a  part  of 
that  mass  of  property  in  the  State  usually  taxed  for  the  support 
of  the  State  government."  See  also  Almy  v.  The  State  of  Cali- 
fornia, 24  Howard,  169;  Woodruff  v.  Parham,  8  Wallace,  123; 
Hinson  r.  Lott,  Ihid.  148. 

The  Supreme  Court  of  California  appears,  from  its  opinion,  to 
have  considered  the  present  case  as  excepted  from  the  rule  laid 
do\NTi  in  Bro^\Ti  v.  The  State  of  Maryland,  because  the  tax  levied 
is  not  directly  upon  imports  as  such,  and  consequently  the  goods 
imported  are  not  subjected  to  any  burden  as  a  class,  but  only 
are  included  as  part  of  the  whole  property  of  its  citizens  which  is 
subjected  equally  to  an  ad  valorem  tax.  But  the  obvious  answer 
to  this  position  is  found  in  the  fact,  which  is,  in  substance,  ex- 
pressed in  the  citations  made  from  the  opinions  of  Marshall  and 
Taney,  that  the  goods  imported  do  not  lose  their  character  as 
imports,  and  become  incorporated  into  the  mass  of  property  of 
the  State,  until  they  have  passed  from  the  control  of  the  importer 
or  been  broken  up  by  him  from  their  original  cases.  Whilst  re- 
taining their  character  as  imports,   a  tax  upon  them,   in  any 


952       commerce:   decisions  since  close  of  civil  war. 

shape,  is  within  the  constitutional  prohibition.  The  question  is 
not  as  to  the  extent  of  the  tax,  or  its  equahty  with  respect  to 
taxes  on  other  property,  but  as  to  the  power  of  the  State  to  levy 
any  tax.  If,  at  any  point  of  time  between  the  arrival  of  the 
goods  in  port  and  their  breakage  from  the  original  cases,  or  sale 
by  the  importer,  they  become  subject  to  State  taxation,  the  ex- 
tent and  the  character  of  the  tax  are  mere  matters  of  legi^^lative 
discretion. 

There  are  provisions  in  the  Constitution  which  prevent  one 
State  from  discriminating  injuriously  against  the  products  of 
other  States,  or  the  rights  of  their  citizens,  in  the  imposition  of 
taxes,  but  where  a  State,  except  in  such  cases,  has  the  power  to 
tax,  there  is  no  authority  in  this  court,  nor  in  the  United  States, 
to  control  its  action,  however  unreasonable  or  oppressive.  The 
power  of  the  State,  except  in  such  ca.ses,  is  absolute  and  supreme. 
Woodruff  V.  Parham,  8  Wallace,  123;  Hinson  v.  Lott,  Ibid.  148. 

The  argument  for  the  tax  on  the  wines  in  the  present  case, 
that  it  is  not  greater  than  the  tax  upon  other  property  of  the 
same  value  held  by  citizens  of  the  State,  would  justify  a  like  tax 
upon  securities  of  the  United  States,  in  which  form  proI)al)ly  a 
large  amount  of  the  property  of  some  of  her  citizens  coasists;  yet 
it  has  been  repeatedly  held  that  such  securities  are  exempted 
from  State  taxation,  whether  the  tax  be  imposed  directly  ujwn 
them  by  name  or  upon  them  as  forming  a  part  in  the  aggregate 
of  the  property  of  the  taxpayer.  Bank  of  Commerce  v.  New  York 
City,  2  Black,  620.  The  rule  is  general  that  whenever  taxation 
by  a  State  is  forbidden,  or  would  interfere  with  the  full  exercise 
of  a  power  vested  in  the  government  of  the  United  States  over 
the  same  subject,  it  cannot  be  imposed.  Imports,  therefore, 
whilst  retaining  their  distinctive  character  as  such,  must  be 
treated  as  being  without  the  jurisdiction  of  the  taxing  power  of 
the  State. 

It  follows  that  the  judgment  of  the  Supreme  Court  of  Cali- 
fornia must  be 

Reversed.^ 

1  Compare  May  v.  New  Orleans,  178  U.  S.  496  (1900).  —  Ed. 


CASE   OF  THE   STATE   FREIGHT  TAX.  953 

CASE   OF  THE   STATE  FREIGHT  TAX. 

Supreme  Court  of  the  United  States.     1873. 

[15  Wallace,  232.]  i 

Error  to  the  Supreme  Court  of  Pennsylvania. 

In  the  Common  Pleas  of  Dauphin  County,  the  Reading  Rail- 
road Company,  a  Pennsylvania  corporation  operating  a  railway 
wholly  within  Pennsylvania,  was  sued  for  taxes  due,  according 
to  a  Pennsylvania  statute  of  May  25,  1864,  enacting  that  "every 
railroad  company,  steamboat  company,  canal  company,  and 
slackwater  navigation  company,  and  all  other  companies  now  or 
hereafter  doing  business  within  this  State,  an^  upon  whose  works 
freight  may  be  transported,  whether  by  such  company  or  by 
individuals,  and  whether  such  company  shall  receive  compensa- 
tion for  transportation,  for  transportation  and  toll,  or  shall  re- 
ceive tolls  only,  except  turnpike  companies,  plank-road  companies, 
and  bridge  companies,  shall  .  .  .  pay  .  .  .  ,  on  each  two  thou- 
sand pounds  of  freight  so  carried,  tax  at  the  following  rates," 
namely  two,  three,  or  five  cents,  according  to  a  classification 
made  in  the  statute.  The  company  had  paid  a  tax  for  freight 
transported  wholly  within  Pennsylvania,  and  the  action  was 
brought  for  the  tax  on  the  freight  which,  as  the  jury  found,  was 
originally  destined  for  transportation  beyond  Pennsylvania  and 
was  actually  transported,  in  a  continuous  course  of  transportation, 
in  the  cars  of  the  company,  to  Pennsylvania  points  and  thence 
in  vessels.  Under  instructions,  the  jury  found  for  the  company. 
Judgment  was  so  given;  but  the  judgment  was  reversed  by  the 
Supreme  Court  of  Pennsylvania  (62  Pa.  State,  286). 

J.  E.  Gowen  and  others,  for  plaintiff  in  error;  and  F.  C.  Brewster, 
Attorney  General  of  Pennsylvania,  and  another,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  case  presents  the  question  whether  the  statute  in  ques- 
tion, —  so  far  as  it  imposes  a  tax  upon  freight  taken  up  within 
the  State  and  carried  out  of  it,  or  taken  up  outside  the  State  and 
delivered  within  it,  or,  in  different  words,  upon  all  freight  other 
than  that  taken  up  and  delivered  within  the  State,  —  is  not  re- 
pugnant to  the  provision  of  the  Constitution  of  the  United  States 
which  ordains  "that  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  States,"  or 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


954       commerce:   decisions  since  close  ok  civil  wah. 

in  conflict  with  the  provision  that  "no  State  shall,  without  the 
consent  of  Congress,  lay  any  imposts  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws."  .  .  . 

It  has  repeatedly  been  held  that  the  constitutionality  or  un- 
constitutionaUty  of  a  State  tax  is  to  be  determined,  not  l)y  the 
form  or  agency  through  which  it  is  to  be  collected,  but  by  the 
subject  upon  which  the  burden  is  laid.  This  was  decided  in 
the  cases  of  Bank  of  Commerce  v.  New  York  City,  2  Black,  020, 
in  The  Bank  Tax  Case,  2  Wallace,  200,  Society  for  Savings  v. 
Coite,  6  Id.  594,  and  Provident  Bank  v.  Massachusetts,  lb.  (311. 
In  all  these  cases  it  appeared  that  the  bank  was  required  by  the 
statute  to  pay  the  tax,  but  the  decisions  turned  upon  the  question, 
what  was  the  subject  of  the  tax,  upon  what  did  the  burden  really 
rest,  not  upon  the  question  from  whom  the  State  exacted  pay- 
ment into  its  treasury.  Hence,  where  it  appeared  that  the  ulti- 
mate burden  rested  upon  the  property  of  the  bank  invested  in 
United  States  securities,  it  was  held  unconstitutional,  but  where 
it  rested  upon  the  franchise  of  the  bank,  it  was  sustained. 

Upon  what,  then,  is  the  tax  imposed  by  the  act  of  August 
25th,  18G4,  to  be  considered  as  laid?  Where  does  the  substantial 
burden  rest?  Very  plainly  it  wius  not  intended  to  Ix^,  nor  is  it  in 
fact,  a  tax  upon  the  franchise  of  the  carrying  companies,  or  upon 
their  property,  or  upon  their  lousiness  meiusured  by  the  numi)er  of 
tons  of  freight  carried.  On  the  contrary,  it  is  expres.sly  laid  upon 
the  freight  carried.  The  companies  are  required  to  pay  to  the 
State  treasurer  for  the  use  of  the  Commonwealth,  "on  each  two 
thousand  pounds  of  freight  so  carried,"  a  tax  at  the  specified 
rates.  And  this  tax  is  not  proportioned  to  the  business  done  in 
transportation.  It  is  the  same  whether  the  freight  be  moved  one 
mile  or  three  hundred.  If  freight  be  put  upon  a  road  and  carried 
at  all,  tax  is  to  be  paid  upon  it,  the  amount  of  the  tax  being  de- 
termined by  the  character  of  the  freight.  And  when  it  is  observed 
that  the  act  provides  "where  the  same  freight  shall  be  carried  over 
and  upon  different  but  continuous  lines,  said  freight  shall  be 
chargeable  with  tax  as  if  it  had  been  carried  upon  one  line,  and 
the  whole  tax  shall  be  paid  by  such  one  of  said  companies  as  the 
State  treasurer  may  select  and  notify  thereof,"  no  room  is  left  for 
doubt.  This  provision  demonstrates  that  the  tax  has  no  reference 
to  the  business  of  the  companies.  In  the  case  of  connected  lines 
thousands  of  tons  may  be  carried  over  the  line  of  one  company 
without  any  liabiUtj^  of  that  company  to  pay  the  tax.    The  State 


CASE  OF  THE  STATE  FREIGHT  TAX.  955 

treasurer  is  to  decide  which  of  several  shall  pay  the  whole.  There 
is  still  another  provision  in  the  act  which  shows  that  the  burden 
of  the  tax  was  not  intended  to  be  imposed  upon  the  companies 
designated  by  it,  neither  upon  their  franchises,  their  property,  or 
their  business.  The  provision  is  as  follows :  "Corporations  whose 
lines  of  improvements  are  used  by  others  for  the  transportation 
of  freight,  and  whose  only  earnings  arise  from  tolls  charged  for 
such  use,  are  authorized  to  add  the  tax  hereby  imposed  to  said 
tolls,  and  to  collect  the  same  therewith."  E\adently  this  contem- 
plates a  habihty  for  the  tax  beyond  that  of  the  company  required 
to  pay  it  into  the  treasury,  and  it  authorizes  the  burden  to  be 
laid  upon  the  freight  carried,  in  exemption  of  the  corporation 
owning  the  roadway.  It  carries  the  tax  over  and  beyond  the  car- 
rier to  the  thing  carried.  Improvement  companies,  not  themselves 
authorized  to  act  as  carriers,  but  having  only  power  to  construct 
and  maintain  roadways,  charging  tolls  for  the  use  thereof,  are 
generally  limited  by  their  charters  in  the  rates  of  toll  they  are 
allowed  to  charge.  Hence  the  right  to  increase  the  tolls  to  the 
extent  of  the  tax  was  given  them  in  order  that  the  tax  might  come 
from  the  freight  transported,  and  not  from  the  treasury  of  the 
companies.  It  required  no  such  grant  to  companies  which  not 
only  own  then-  roadway  but  have  the  right  to  transport  thereon. 
Though  the  tolls  they  may  exact  are  limited,  their  charges  for 
carriage  are  not.  They  can,  therefore,  add  the  tax  to  the  charge 
for  transportation  without  further  authority.  Vide  Boyle  v. 
The  Reading  Railroad  Company,  54  Pennsylvania  State,  310; 
Cumberland  Valley  Railroad  Co.'s  Appeal,  62  Id.  218.  In  view 
of  these  provisions  of  the  statute  it  is  impossible  to  escape  from 
the  conviction  that  the  burden  of  the  tax  rests  upon  the  freight 
transported,  or  upon  the  consignor  or  consignee  of  the  freight 
(imposed  because  the  freight  is  transported),  and  that  the  com- 
pany authorized  to  collect  the  tax  and  required  to  pay  it  into 
the  State  Treasury-  is,  in  effect,  only  a  tax-gatherer.  .  .  . 

Considermg  it,  then,  as  manifest  that  the  tax  demanded  by 
the  act  is  imposed,  not  upon  the  company,  but  upon  the  freight 
carried,  and  because  carried,  we  proceed  to  inquire  whether,  so 
far  as  it  affects  commodities  transported  through  the  State,  or 
from  points  without  the  State  to  points  within  it,  or  from  points 
within  the  State  to  points  without  it,  the  act  is  a  regulation  of  in- 
terstate commerce.  .  .  . 

Why  is  not  a  tax  upon  freight  transported  from  State  to  State 
a  regulation  of  interstate  transportation,  and,  therefore,  a  regula- 


956       commerce:   decisions  since  close  of  civil  war. 

tion  of  commerce  among  the  States?  Is  it  not  prescribing  a  rule 
for  the  transporter,  by  which  he  is  to  be  controlled  in  bringing 
the  subjects  of  commerce  into  the  State,  and  in  taking  them  out? 
The  present  case  is  the  best  possible  illustration.  The  legislature 
of  Pennsylvania  has  in  effect  declared  that  every  ton  of  freight 
taken  up  within  the  State  and  carried  out,  or  taken  up  in  other 
States  and  brought  within  her  limits,  shall  pay  a  specified  tax. 
The  payment  of  that  tax  is  a  condition,  upon  w-hich  is  made  de- 
pendent the  prosecution  of  this  branch  of  commerce.  And  as 
there  is  no  limit  to  the  rate  of  taxation  she  may  impose,  if  she 
can  tax  at  all,  it  is  obvious  the  condition  may  be  made  so  onerous 
that  an  interchange  of  commodities  with  other  States  would 
be  rendered  impossible.  .  .  .  Nor  can  it  make  any  difference 
that  the  legislative  purpose  was  to  raise  money  for  the  support  of 
the  State  government,  and  not  to  regulate  transportation.  It  is 
not  the  purpose  of  the  law,  but  its  effect,  which  we  are  now  con- 
sidering. Nor  is  it  at  all  material  that  the  tax  is  levied  upon  all 
freight,  as  well  that  which  is  wholly  internal  as  that  embarked  in 
interstate  trade.  We  are  not  at  this  moment  inquiring  further 
than  whether  taxing  goods  carried  because  they  are  carried  is  a 
regulation  of  carriage.  The  State  may  tax  its  internal  commerce, 
but  if  an  act  to  tax  interstate  or  foreign  commerce  is  unconstitu- 
tional, it  is  not  cured  by  including  in  its  provisions  subjects  within 
the  domain  of  the  State.  Nor  is  a  rule  prescribed  for  carriage  of 
goods  through,  out  of,  or  into  a  State  anj^  the  less  a  regulation 
of  transportation  because  the  same  rule  may  be  applied  to  car- 
riage which  is  wholly  internal.  Doubtless  a  State  may  regulate 
its  internal  commerce  as  it  pleases.  If  a  State  chooses  to  exact 
conditions  for  allowing  the  passage  or  carriage  of  persons  or  freight 
through  it  into  another  State,  the  nature  of  the  exaction  is  not 
changed  by  adding  to  it  similar  conditions  for  allowing  transporta- 
tion wholly  within  the  State.  .  .  . 

If,  then,  this  is  a  tax  upon  freight  carried  between  States,  and 
a  tax  because  of  its  transportation,  and  if  such  a  tax  is  in  effect 
a  regulation  of  interstate  commerce,  the  conclusion  seems  to  be 
ine\dtable  that  it  is  in  conflict  with  the  Constitution  of  the  United 
States.  It  is  not  necessary  to  the  present  case  to  go  at  large  into 
the  much-debated  question  whether  the  power  given  to  Congress 
by  the  Constitution  to  regulate  commerce  among  the  States  is 
exclusive.  In  the  earUer  decisions  of  this  court  it  was  said  to  have 
been  so  entirely  vested  in  Congress  that  no  part  of  it  can  be  exer- 
cised by  a  State.     Gibbons  v.  Ogden,  9  Wheaton,  1;    Passenger 


CASE   OF  THE   STATE   FREIGHT   TAX.  957 

Cases,  7  Howard,  283.     It  has,  indeed,  often  been  argued,  and 
sometimes  intimated,  by  the  court  that,  so  far  as  Congress  has 
not  legislated  on  the  subject,  the  States  may  legislate  respecting 
mterstate  commerce.     Yet,  if  they  can,  why  may  they  not  add 
regulations  to  commerce  with  foreign  nations  beyond  those  made 
by  Congress,  if  not  inconsistent  with  them,  for  the  power  over 
both   foreign   and   interstate   commerce   Ls   conferred   upon   the 
Federal  legislature  by  the  same  words.    And  certainly  it  has  never 
yet  been  decided  by  this  court  that  the  power  to  regulate  inter- 
state, as  well  as  foreign  commerce.  Is  not  exclusively  in  Congress. 
Cases  that  have  sustained  State  laws,  alleged  to  be  regulations  of 
commerce  among  the  States,  have  been  such  as  related  to  bridges 
or  dams  acro.ss  streams  wholly  within  a  State,  police  or  health 
laws,  or  subjects  of  a  kindred  nature,  not  strictly  commercial  regu- 
lations.   The  subjects  were  such,  as  in  Oilman  v.  Philadelphia,  3 
Wallace,  713,  it  was  said  "can  be  best  regulated  by  rules  and 
provisions  suggested  by  the  varj-ing  circumstances  of  different 
locaUties,  and  limited  in  their  operation  to  such  localities  respec- 
tively."   However  this  may  be,  the  rule  has  been  asserted  with 
great  clearness,  that  whenever  the  subjects  over  which  a  power 
to  regulate  commerce  is  asserted  are  in  their  nature  national,  or 
admit  of  one  uniform  .system  or  plan  of  regulation,  they  may 
justly  be  said  to  be  of  such  a  nature  as  to  require  exclusive  legis- 
lation by  Congress.    Cooley  v.  Board  of  Wardens,  12  Howard,  299; 
Gihnan  v.  Philadelphia,  supra;  CrandaU  v.  The  State  of  Nevada,' 
6  Wallace,  42.     Surely  transportation  of  passengers  or  merchan- 
dise through  a  State,  or  from  one  State  to  another,  is  of  this  nature. 
It  is  of  national  importance  that  over  that  subject  there  should 
be  but  one  regulating  power,  for  if  one  State  can  directly  tax  per- 
sons or  property  pa.ssing  through  it,  or  tax  them  indirectly  by 
levying  a  tax  upon  their  transportation,  every  other  may,  and 
thus  commercial  intercourse  between  States  remote  from  each 
other  may  be  destroyed.  .  .  } 

And  if  State  taxation  of  persons  passing  from  one  State  to 
another,  or  a  State  tax  upon  interstate  transportation  of  passen- 
gers is  unconstitutional  a  fortiori,  if  possible,  is  a  State  tax  upon 
the  carriage  of  merchandise  from  State  to  State,  in  conflict  with 
the  Federal  Constitution.  Merchandi.se  is  the  subject  of  com- 
merce.    Tran-sportation  is  e.s.sential   to   commerce;    and   every 

»  Here  were  cited  Almy  v.  California,  24  How.  169  (1860);  Woodruff  v. 
Parham,  ante,  p.  936  (1869;;  and  CrandaU  v.  Nevada,  6  WaU.  35  (1869).— 
Ed. 


958       commerce:   decisions  since  close  of  civil  war. 

burden  laid  upon  it  is  pro  tanlo  a  restriction.  Whatever,  therefore, 
may  be  the  true  doctrine  respecting  the  exclusiveness  of  the 
power  vested  in  Congress  to  rcguhite  commerce  among  the 
States,  we  regard  it  as  estabhshed  that  no  State  can  impose 
a  tax  upon  freight  transported  from  State  to  State,  or  upon  the 
transporter  because  of  such  transportation.  .  .  . 

Judgment  reversed.  .  .  } 

SwAYNE,  J.  (with  whom  concurred  Davis,  J.),  (Ussenting. 

I  dissent  from  the  opinion  just  read.  In  my  judgment,  the 
tax  is  imposed  upon  the  business  of  those  rcquiroil  to  pay  it.  The 
tonnage  is  only  the  mode  of  ascertaining  the  extent  of  the  busi- 
ness. That  no  discrimination  is  made  between  freight  carried 
wholly  within  the  State,  and  tliat  brought  into  or  carried  through 
or  out  of  it,  sets  this,  as  I  think,  in  a  clear  light,  and  is  conclusive 
on  the  subject. 


RAILROAD  COMPANY  v.   FULLER. 
Supreme  Court  of  the  United  States.     1873. 

[17  Wallace,  560.1 ' 

Error  to  the  Supreme  Court  of  Iowa. 

Under  an  Iowa  statute  of  18G2  requiring  each  railway  to  fix  its 
rates  annually,  in  September,  and  to  post  a  list  of  the  rates,  and 
imposing  a  penalty  for  failing  to  post  the  rates  or  for  charging 
higher  rates  than  posted,  Fuller  brought  action  in  a  District 
Court  of  Iowa  against  the  Chicago  and  Northwestern  Railroad 
Company,  an  Illinois  corporation  w^orking  a  continuous  line 
through  Illinois,  Iowa,  and  other  Stales,  for  charging  him  on 
goods  from  Chicago  to  Marshalltown,  Iowa,  more  than  the  posted 
rate.  On  June  15,  1866,  Congress  had  enacted  that  "Whereas 
the  Constitution  .  .  .  confers  upon  Congress,  .  .  .  the  power  to 
regulate  commerce  among  the  several  States,  to  establish  post- 
roads  and  to  raise  and  support  armies;  therefore  .  .  .  every 
railroad  in  the  United  States  ...  is  hereby  authorized  to  carry 
upon  and  over  its  road,  bridges,  and  ferries,  all  passengers,  troops, 

»  See  Telegraph  Company  v.  Texas,  105  U.  S.  460  (1882).  —  Ed. 
*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


RAILROAD   COMPANY  V.   FULLER.  959 

government  supplies,  mails,  freight,  and  property  on  their  way 
from  any  State  to  another  State,  and  to  receive  compensation 
therefor."  The  company  pleaded  that  the  Iowa  statute  conflicted 
with  the  conunerce  clause  of  the  Constitution.  A  demurrer  was 
overruled,  and  the  company  excepted.  The  company  asked  a 
charge  to  the  same  effect;  but  this  was  refused,  and  the  com- 
pany again  excepted.  \'erdict  and  judgment  having  been  given 
for  the  plaintiff,  the  Supreme  Court  of  Iowa  affirmed  the  judg- 
ment. 

H.  C.  Henderson  and  B.  C.  Cook,  for  plaintiff  in  error;  and 
J.  H.  Ashton  and  A''.  Wilson,  contra. 

SwAYNE,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

No  discrimination  is  made  between  local  and  interstate  freights, 
and  no  attempt  is  made  to  control  the  rates  that  may  be  charged. 
It  is  only  required  that  the  rates  shall  be  fixed,  made  public,  and 
honestly  adhered  to.  In  this  there  is  nothing  unreasonable  or 
onerous.  The  public  welfare  is  promoted  without  wTong  or  in- 
jury to  the  company.  The  statute  was  doubtless  deemed  to  be 
called  for  by  the  interests  of  the  community  to  be  affected  by  it, 
and  it  rests  upon  a  solid  foundation  of  reason  and  justice. 

It  is  not,  in  the  sense  of  the  Constitution,  in  any  wise  a  regula- 
tion of  commerce.  It  is  a  police  regulation,  and  as  such  forms 
"a  portion  of  the  immense  mass  of  legislation  which  embraces 
everything  within  the  territory  of  a  State  not  surrendered  to  the 
General  Government,  all  which  can  be  most  advantageously  exer- 
cised by  the  States  themselves."    Gibbons  v.  Ogden,  9  Wheaton,  1. 

This  case  presents  a  striking  analogy  to  a  prominent  feature 
in  the  case  of  The  Brig  James  Gray  v.  The  Ship  John  Fraser, 
21  Howard,  184.  There  the  city  authorities  of  Charleston  had 
passed  an  ordinance  prescribing  where  a  vessel  should  lie  in  the 
harbor,  what  light  she  should  show  at  night,  and  making  other 
similar  regulations.  It  was  objected  that  these  requirements 
were  regulations  of  commerce  and,  therefore,  void.  This  court 
affirmed  the  validity  of  the  ordinance. 

In  the  complex  system  of  poUty  which  exists  in  this  country 
the  powers  of  government  may  be  divided  into  four  classes: 

Those  which  belong  exclusively  to  the  States. 

Those  which  belong  exclusively  to  the  National  government. 

Those  which  may  be  exercised  concurrently  and  independently 
by  both. 

And  those  which  may  be  exercised  by  the  States  but  only  imtil 
Congress  shall  see  fit  to  act  upon  the  subject. 


960      commerce:   decisions  since  close  of  civil  wah. 

The  authority  of  the  State  then  retires  and  lies  in  abeyance 
until  the  occasion  for  its  exercise  shall  recur.  Ex  parte  McNiel,  13 
Wallace,  240. 

Commerce  is  traffic,  but  it  is  much  more.  It  embraces  also 
transportation  by  land  and  water,  and  all  the  means  and  appli- 
ances necessarily  employed  in  carryinfj;  it  on.  2  Story  on  the 
Constitution,  §§  1001,  1002. 

The  authority  to  regulate  commerce,  lodged  by  the  Constitu- 
tion in  Congress,  is  in  part  within  the  last  division  of  the  pow(Ts 
of  government  above  mentioned.  Some  of  the  rules  pn^scribcd 
in  the  exercise  of  (iuit  jjowcr  must  from  the  nature  of  things  be 
uniform  throughout  the  country.  To  that  extent  the  authority 
itself  must  necessarily  be  exclusive,  as  much  .so  a.s  if  it  had  l)een 
declared  so  to  be  l)y  the  Constitution  in  express  terms. 

Others  may  well  vary  with  the  varying  circum.stanees  of  differ- 
ent localities.  Where  a  stream  navigable  for  the  purposes  of 
foreign  or  interstate  commerce  is  obstructed  by  the  authority  of 
a  State,  such  exercise  of  authority  may  be  valid  until  Congress 
shall  see  fit  to  intervene.  .  .  . 

If  the  requirements  of  the  statute  here  in  question  were,  as  con- 
tended by  the  counsel  for  the  plaintiff  in  error,  regulations  of 
commerce,  the  question  would  arise,  whether,  regarded  in  the 
light  of  the  authorities  referred  to,  and  of  reason  and  principle, 
they  are  not  regulations  of  such  a  character  as  to  be  valid  until 
superseded  by  the  paramount  action  of  Congress.  But  as  we 
are  unanimously  of  the  opinion  that  they  are  merely  police  regu- 
lations, it  is  unnecessary  to  pursue  the  subject. 

Judgment  affirmed. 


WELTON  V.  MISSOURI. 
Supreme  Court  of  the  United  States.     1876. 

[91  United  States,  275.] » 

Error  to  the  Supreme  Court  of  Missouri. 

Welton  was  indicted  and  convicted  in  the  Circuit  Court  for 
Henry  County  for  selling  sewing  machines  made  outside  Missouri, 
while  going  from  place  to  place,  in  disobedience  to  a  Missouri 

1  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


WELTON  V.   MISSOURI.  961 

Statute  whereby  it  was  provided  that  "whoever  shall  deal  in  .  .  . 
machines,  goods,  wares,  or  merchandises,  except  books,  charts, 
maps,  and  stationery,  which  are  not  the  gro'^\i:h,  produce,  or  man- 
ufacture of  this  State,  by  going  from  place  to  place  to  sell  the  same, 
is  declared  to  be  a  peddler,"  and  that  a  peddler  not  paying  a 
certain  rate  for  a  license  is  subject  to  a  penalty.  Xo  Hcense  was  re- 
quired for  selling  from  place  to  place  the  growi;h,  produce,  or  man- 
ufacture oi  Missouri.  The  Supreme  Court  of  ^Missouri  affirmed 
the  judgment. 

J.  T.  Botsford  and  another,  for  plaintiff  in  error;  and  J.  A. 
Hockaday,  Attorney  General  of  Missouri,  and  another,  contra. 

Field,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  license  charge  exacted  is  sought  to  be  maintained  as  a  tax 
upon  a  calling.  It  was  held  to  be  such  a  tax  by  the  Supreme  Court 
of  the  State;  a  calling,  says  the  court,  which  is  limited  to  the  sale 
of  merchandise  not  the  growth  or  product  of  the  State. 

The  general  power  of  the  State  to  impose  taxes  in  the  way  of 
licenses  upon  all  pursuits  and  occupations  within  its  limits  is  ad- 
mitted, but,  like  all  other  powers,  must  be  exercised  in  subordi- 
nation to  the  requirements  of  the  Federal  Constitution.  Where 
the  business  or  occupation  consists  in  the  sale  of  goods,  the  license 
tax  required  for  its  pursuit  is  in  effect  a  tax  upon  the  goods  them- 
selves. If  such  a  tax  be  within  the  power  of  the  State  to  le\'>',  it 
matters  not  whether  it  be  raised  directly  from  the  goods,  or  in- 
directly from  them  through  the  license  to  the  dealer;  but,  if  such 
tax  conflict  with  any  power  vested  in  Congress  by  the  Constitu- 
tion of  the  United  States,  it  will  not  be  any  the  less  invalid  because 
enforced  through  the  fonn  of  a  personal  license.^  .  .  . 

The  license  tax  exacted  by  the  State  of  ^Missouri  from  dealers 
in  goods  which  are  not  the  product  or  manufacture  of  the  State, 
before  they  can  be  sold  from  place  to  place  within  the  State,  must 
be  regarded  as  a  tax  upon  such  goods  themselves;  and  the  ques- 
tion presented  is,  whether  legislation  thus  discriminating  against 
the  products  of  other  States  in  the  conditions  of  their  sale  by  a 
certain  class  of  dealers  is  valid  under  the  Constitution  of  the 
United  States.  It  was  contended  in  the  State  courts,  and  it  is 
urged  here,  that  this  legislation  violates  that  clause  of  the  Con- 
stitution which  declares  that  Congress  shall  have  the  power  to 
regulate  commerce  with  foreign  nations  and  among  the  several 
States.  The  power  to  regulate  conferred  by  that  clause  upon 
Congress  is  one  without  limitation;  and  to  regulate  commerce  is 
1  Citing  Brown  v.  Marj'land,  ante,  p.  886  (1827).  —Ed. 


962       commerce:   decisions  since  close  of  civil  war. 

to  prescribe  rules  by  which  it  shall  be  governed,  —  that  is,  the 
conditions  upon  which  it  shall  be  conducted;  to  determine  how 
far  it  shall  be  free  and  untrammelled,  how  far  it  shall  be  burdened 
by  duties  and  imposts,  and  how  far  it  shall  be  prohibited. 

Commerce  is  a  term  of  the  largest  import.  It  comprehends 
intercourse  for  the  purposes  of  trade  in  any  and  all  its  forms,  in- 
cluding the  transportation,  purchase,  sale,  and  exchange  of  com- 
modities between  the  citizens  of  our  country  and  the  citizens  or 
subjects  of  other  countries,  and  between  the  citizens  of  different 
States.  The  power  to  regulate  it  embraces  all  the  instruments  by 
which  such  commerce  may  be  conducted.  So  far  as  some  of  these 
instruments  are  concerned,  and  some  subjects  which  are  local  in 
their  operation,  it  has  been  held  that  the  States  may  pro\'ide  regu- 
lations until  Congress  acts  with  reference  to  them;  but  where  the 
subject  to  which  the  power  applies  is  national  in  its  character,  or 
of  such  a  nature  as  to  admit  of  uniformity  of  regulation,  the  power 
is  exclusive  of  all  State  authority. 

It  will  not  be  denied  that  that  portion  of  commerce  with  foreign 
countries  and  between  the  States  which  consists  in  the  tran.^porta- 
tion  and  exchange  of  connnodities  is  of  national  importance,  and 
admits  and  requires  uniformity  of  regulation.  The  very  object  of 
investing  this  power  in  the  general  government  was  to  insure  this 
uniformity  against  discriminating  State  legislation.  The  depressed 
condition  of  commerce  and  the  obstacles  to  its  growth  previous 
to  the  adoption  of  the  Constitution,  from  the  want  of  some  single 
controlling  authority,  has  been  frequently  referred  to  by  this  court 
in  commenting  upon  the  power  in  question.  .  .  . 

The  power  which  insures  uniformity  of  commercial  regulation 
must  cover  the  property  which  is  transported  as  an  article  of  com- 
merce from  hostile  or  interfering  legislation,  until  it  has  mingled 
with  and  become  a  part  of  the  general  property  of  the  country-, 
and  subjected  like  it  to  similar  protection,  and  to  no  greater 
burdens.  If,  at  any  time  before  it  has  thus  become  incorporated 
into  the  mass  of  property  of  the  State  or  nation,  it  can  be  subjected 
to  any  restrictions  by  State  legislation,  the  object  of  investing  the 
control  in  Congress  may  be  entirely  defeated.  If  Missouri  can 
require  a  license  tax  for  the  sale  by  traveling  dealers  of  goods 
which  are  the  growth,  product,  or  manufacture  of  other  States  or 
countries,  it  may  require  such  license  tax  as  a  condition  of  their 
sale  from  ordinary  merchants,  and  the  amount  of  the  tax  will 
be  a  matter  resting  exclusively  lq  its  discretion. 

The  power  of  the  State  to  exact  a  license  tax  of  any  amount 


WELTON   V.   MISSOURI.  963 

being  admitted,  no  authority  would  remain  in  the  United  States 
or  in  this  court  to  control  its  action,  however  unreasonable  or  op- 
pressive. Imposts  operating  as  an  absolute  exclusion  of  the  goods 
would  be  possible,  and  all  the  evils  of  discriminating  State  legisla- 
tion, favorable  to  the  interests  of  one  State  and  injurious  to  the 
interests  of  other  States  and  countries,  which  existed  previous  to 
the  adoption  of  the  Constitution,  might  follow,  and  the  experience 
of  the  last  fifteen  years  shows  would  follow,  from  the  action  of 
some  of  the  States. 

There  is  a  difficulty,  it  is  true,  in  all  cases  of  this  character,  in 
drawing  the  line  precisely  where  the  commercial  power  of  Con- 
gress ends  and  the  power  of  the  State  begins.  A  similar  difficulty 
was  felt  by  this  court,  in  Bro^vn  v.  ^Maryland.  .  .  . 

Follo\\nng  the  guarded  language  of  the  court  in  that  case,  we 
observe  here,  as  was  observed  there,  that  it  would  be  premature 
to  state  any  rule  which  would  be  universal  in  its  application  to 
determine  when  the  commercial  power  of  the  Federal  govern- 
ment over  a  commodity  has  ceased,  and  the  power  of  the  State 
has  commenced.  It  is  sufficient  to  hold  now  that  the  commer- 
cial power  continues  until  the  commodity  has  ceased  to  be  the 
subject  of  discriminating  legislation  by  reason  of  its  foreign  char- 
acter. That  power  protects  it,  even  after  it  has  entered  the  State, 
from  any  burdens  imposed  by  reason  of  its  foreign  origin.  The 
act  of  Missouri  encroaches  upon  this  power  in  this  respect,  and 
is  therefore,  in  our  judgment,  unconstitutional  and  void. 

The  fact  that  Congress  has  not  seen  fit  to  prescribe  any  specific 
rules  to  govern  interstate  commerce  does  not  affect  the  question. 
Its  inaction  on  this  subject,  when  considered  with  reference  to  its 
legislation  with  respect  to  foreign  commerce,  is  equivalent  to  a 
declaration  that  interstate  commerce  shall  be  free  and  untram- 
melled. As  the  main  object  of  that  commerce  is  the  sale  and 
exchange  of  commodities,  the  pohcy  thus  estabhshed  would  be 
defeated  by  discriminating  legislation  like  that  of  Missouri. 

The  views  here  expressed  are  not  only  supported  by  the  case 
of  BrowTi  V.  Maryland,  already  cited,  but  also  by  the  case  of 
Woodruff  V.  Parham,  8  Wall.  123,  and  the  case  of  the  State  Freight 
Tax,  15  Wall.  232.  .  .  .  j^^^^         , 

1  See  Hinson  v.  Lott,  8  Wall.  110  (1869);  Ward  v.  Maryland,  12  WaU.  418 
(1871);  Guy  f.  Baltimore,  100  U.  S.  434  (1880);  Walling  i'.  Michigan,  116 
U.  S.  446  (1886);  Robbins  v.  Shelby  County,  120  U.  S.  489  (1887);  FickHn 
r.  Shelby  County,  145  U.  S.  1  (1892);  Emert  v.  Missouri,  156  U.  S.  296  (1895) : 
Stockard  v.  Morgan,  185  U.  S.  27  (1902).  —  Ed.     ' 


964       commerce:   decisions  since  close  of  civil  war. 

SHERLOCK   V.   ALLING,   Administrator. 
Supreme  Court  of  the  United  States.     1876. 

[93  United  States,  99.] » 

Error  to  the  Supreme  Court  of  Indiana. 

In  a  Common  Pleas  Court  an  administrator,  relying  upon  an 
Indiana  statute  providing  that  "when  the  death  of  one  is  caused 
by  the  wrongful  act  or  omission  of  another,  the  personal  repre- 
sentative of  the  former  may  maintain  an  action  therefor,  if  the 
former  might  have  maintained  an  action,  had  he  lived,"  brought 
action  against  owners  of  a  steamboat  for  negligently  causing  the 
death  of  the  intestate,  a  passenger,  by  a  collision  which  occurred 
while  the  steamboat  was  navigating  the  river  Ohio  at  a  point  oppo- 
site Indiana  and  witliin  the  territorial  limits  of  that  State.  One 
defence  was  that  the  twoLsteamb^ts  were_at  th^tinie  engaged 
in  interstate  pnmmprce  under  the  laws  of  the  United  _Stiites. 
The  court  instructed  the  juryjhat  if  the  collision  occurred  withhi 
the  territorial  jurisdiction  and  was__caused  by  the  carelessness  or 
misconduct^oriTie  defendants  or  their  employ(5sj  without  _the 
fault  of  the  deceased,  the  plaintiffsliould  recover.  A  judgment 
for  the  plaintiff  was  affirmed  by  the  Supreme  Court  of  Indiana. 

T.  D.  Lincoln,  for  plaintiffs  in  error;   and  C.  A.  Korbly,  contra. 

Field,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

It  is  contendej  that  thp  stn.tnte  of  Indiana  creates  a_.new 
li-flhiHty,  ^.T^d  p.nuld  not,  therefore,  be  applied  to  cases  where  the 
injuries  complained  of  were  caused  by  marine  torts,  withoutjntcr- 
fering  with  the  exclusive  regulation_of  commercft  vested  in  Con- 
gress.  The  position  of  the  defendants,  as  we  understand  it,  is, 
that  as  byl^oth  the  common  and  maritime  law  the  riglit  of  action 
for  personal  torts  dies  with  the  person  iiijure(l,  the  statute  \iJiiich 
allows  actions  for  sucli  torts,  when  resulting  in  the  death  of  the 
person  injured,  to  be  brought  by  the  personal  representatives  of 
the  deceased,  enlarges  the  liability  of  parties  for  sueh  torts,  and 
that  "such  enlarged  liability,  if  ai^plied  to  cases  of  marine  torts, 
would  constitute  a  new  bunleu  ui^on  commerce. 

In  supposed  support  of  this  position  numerous  decisions  of 
this  court  are  cited  by  counsel,  to  the  effect  that  the  States  can- 
not by  legislation  place  burdens  upon  commerce  with  foreign 
nations  or  among  the  several  States.     The  decisions  go  to  that 

1  A  statement  tias  been  framed  upon  the  opinion.  —  Ed. 


SHERLOCK   V.   ALLING.  965 

extent,  and  their  soundness  is  not  questioned.  But,  upon  an 
examination  of  the  cases  in  which  they  were  rendered,  it  will 
be  found  that  the  legislation  adjudged  invahd  imposed  a  tax  upon 
some  instrument  or  subject  of  commerce,  or  exacted  a  hcense 
fee  from  parties  engaged  in  commercial  pursuits,  or  created  an 
impediment  to  the  free  navigation  of  some  public  waters,  or 
prescribed  conditions  in  accordance  with  which  commerce  in  par- 
ticular articles  or  between  particular  places  was  required  to  be 
conducted.  In  all  the  cases  the  legislation  condemned  operated 
directly  upon  commerce,  either  bj^  wa^y  of  tax  upon  its  business, 
license  upon  its  pursuit  in  particular  channels,  or  conditions  for 
carrying  it  on.  Thus,  in  The  Passenger  Cases,  7  How.  445,  the 
laws  of  New  York  and  Massachusetts  exacted  a  tax  from  the 
captains  of  vessels  bringing  passengers  from  foreign  ports  for 
every  passenger  landed.  In  the  Wheehng  Bridge  Case,  13  Id. 
518,  the  statute  of  \'irginia  authorized  the  erection  of  a  bridge, 
which  was  held  to  obstruct  the  free  navigation  of  the  river  Ohio. 
In  the  case  of  Sinnot  v.  Davenport,  22  Id.  227,  the  statute  of 
Alabama  required  the  owner  of  a  steamer  navigating  the  waters  of 
the  State  to  file,  before  the  boat  left  the  port  of  Mobile,  in  the 
office  of  the  probate  judge  of  Mobile  Count}',  a  statement  in  writ- 
ing, setting  forth  the  name  of  the  vessel,  and  of  the  owner  or 
owners,  and  his  or  their  place  of  residence  and  interest  in  the  vessel, 
and  prescribed  penalties  for  neglecting  the  requirement.  It 
thus  imposed  conditions  for  carrying  on  the  coasting  trade  in  the 
waters  of  the  State  in  addition  to  those  prescribed  by  Congress. 
And  in  all  the  other  cases  where  legislation  of  a  State  has  been  held 
to  be  null  for  interfering  with  the  commercial  power  of  Congress, 
as  in  Brown  v.  Marjdand,  12  WheaTTlSo^  State  Tonnage  Tax 
Cases,  12  Wall.  204,  and  Welton  v.  Missouri,  91  U.  S.  275,  tlie 
legislation  created,  in  the  way  of  tax,  license,  or  condition,  a  direct. 
burden  upon  commerce,  or  in  some  way  directly  interfered  with 
its  freedom.  T[n  the  present  case  nonsuch  6perattSiLSa.nIEEMcti^ed 
to  the  statiitp  of  Tndi'n.nal  That  statute  imposes  no  tax,  prescribes 
no  dujty,  and  in  no  respect  interferes  with  any  regulations  for  tKe 
na\dgation  and  use  of  vessels.  It  onj^declares  a  general  prin- 
ciple respecting^the  liability  of  all  persons  within^the  jurisdiction 
of  the^tate  for  torts' resulting  in~lhe  dea^  of  parties  injured. 
Ancl  in  the  apphcation  of  the  principle  it  makes  no_  difference 
where  the  injury  complained  of  occurred  in  the  State,  whether  on 
land  or  on  water.  General  legislation  of  this  kind,  prescribing  the 
liabilities  or  duties  ofTitizens  of  a  State,  without  distinction  as 


966      commerce:   decisions  since  close  of  civil  war. 

to  purtsuit  or  calling,  is  not  open  to  any  vjili(l_ol)jwU44**i  lifecause  it 
may  "affeCt  p.CfS6ns"  cTigdfiCd  in  foreign  "or  interstate  commerce. 
Objection  might  with  equal  propriety  be  urged  against  legislation 
prescribing  the  form  in  which  contracts  shall  be  autlienticated,  or 
property  descend  or  be  distributed  on  the  death  of  its  owner, 
because  applicable  to  the  contracts  or  estates  of  persons  engaged 
in  such  commerce.  In  conferring  upon  Congress  the  regulation 
of  commerce,  it  was  never  intended  to  cut  the  States  off  from 
legislating  on  all  subjects  relating  to  the  health,  life,  and  safety  of 
their  citizens,  though  the  legislation  might  indirectly  affect  the 
commerce  of  the  countr>\  Legislation,  in  a  great  variety  of  ways, 
may  affect  commerce  and  persons  engaged  in  it  without  constitut- 
ing a  regulation  of  it,  within  the  meaning  of  the  Constitution. 

It  is  true  that  the  commercial  power  conferred  by  the  Constitu- 
tion is  one  without  limitation.  It  authorizes  legislation  with 
respect  to  all  the  sul)jects  of  foreign  and  intei"state  commerce, 
the  persons  engaged  in  it,  and  the  instruments  by  which  it  is 
carried  on.  And  legislation  has  largely  dealt.  s<^)  far  lus  com- 
merce by  water  is  concerned,  with  the  instruments  of  that 
commerce.  It  has  embraced  the  whole  subject  of  navigation, 
prescribed  what  shall  constitute  American  ve.ssi'ls,  and  by  whom 
they  shall  be  navigated;  how  tliey  shall  l)e  registered  or  enrolled 
and  licensed;  to  what  tonnage,  hospital,  and  other  dues  they  shall 
be  sul)jected;  what  rules  they  shall  obey  in  pa.s.'^ing  each  other; 
and  what  provision  their  owners  shall  make  for  the  health,  safety, 
and  comfort  of  their  crews.  Since  steam  has  been  applied  to  the 
propulsion  of  ves.sels,  legislation  has  eml)raced  an  infinite  variety 
of  further  details,  to  guartl  against  accident  and  consequent  loss 
of  life. 

The  power  to  prescribe  these  and  similar  regulations  neces- 
sarily involves  the  right  to  declare  the  liability  wliich  shall 
follow  their  infraction.  Whatever,  thefpfnrp,  rnnpjfjf^s  determines, 
either  as  toa  rep;nl,7.^^9p  or  the  1i.n.bilitMiQii.itK-infrinfrf^pnt„  is 
exclusive  of  State  authority.  But  with  reference  to  a  great  variety 
of  matters  touching  the  rights  and  Habilities  of  persons  engaged 
in  commerce,  either  as  dwiicrs  or  ii.i\  i<>.itnrs  nf  ve.ssels,  the  laws 
of  Congress  arc  silent,  ami  the  hi\v>  of  the  State  govern.  The 
rules  for  the  arciuisitioii  of  property  l)y  persons  fiflgSLged  in 
navigation,  and  for  its  transfer  and  descent,  are,  with  some 
exceptions,  those  prescribed  by  the  State  to  which  the  vessels 
belong;  and  it  may  be  said,  generally,  that  the  legislation  of_ 
g,  State,  not  directed  agninsf  fnmmpmp^r  any  of  its  regulations. 


HALL  V.    DE   CUIR.  967 

but  relating  to  the  rights,  duties,  and  liabilities  of  citizens, _and 
only  indirectly  and  remotely  affecting  the  operations  of^  com- 
merce, is  of  oBIigatory  force  upon  citizens  within  its  territorial 
jurisdiction,  whether  on  land  or  water^  or  engaged  in  commerce, 
foreign  or  inlefstate,  or  in  any  other  pursuit.  In  our  judgment, 
the  StaTute'of  Indiana  falls  under  this  class.  Until  Congress, 
therefore,  makes  some  regulation  touching  the  UabiUty  of  parties 
for  inarine  torts  resulting  in  the  death  of  the  persons  injured,  we 
are  of  opinion  tliaT  the  statute  of  Indiana  applies,  giving  a  righi 
of  action  in  such  cases  to  the  personal  representatives  of  the  de- 
ceased, ^ain^^thatT'as  Ihus  apphed,  it  constitutes  no  encroach- 
ment upon  the  commercial  power  of  Congress.  United  States 
V.  Bevans,  3  \Mieat.  337. 

In  the  case  of  The  Steamboat  Company  v.  Chase,  reported  in 
the  16th  of  Wallace,  this  court  sustained  an  action  for  a  marine 
tort  resulting  in  the  death  of  the  party  injured,  in  the  name  of 
the  administrator  of  the  deceased,  under  a  statute  of  Rhode 
Island,  similar  in  its  general  features  to  the  one  of  Indiana. 
There  the  deceased  was  killed  whilst  crossing  Narragansett  Bay 
in  a  sailboat  by  collision  with  a  steamer  of  the  company;  and 
though  objections  were  taken,  and  elaborately  argued,  against 
the  jurisdiction  of  the  court,  it  was  not  even  suggested  that  the 
right  of  action  conferred  by  the  statute,  when  applied  to  cases 
arising  out  of  marine  torts,  in  any  way  infringed  upon  the  com- 
mercial power  of  Congress.  .  .  . 

Judgment  affirmed} 


HALL  V.   DE  CUIR. 

Supreme  Court  of  the  United  States.     1878. 

[95  United  States,  485.]  * 

Error  to  the  Supreme  Court  of  Louisiana. 

Under  a  Louisiana  statute  forbidding  common  carriers  of  pas- 
sengers  to  make  discnmmation  because  oJ  rac£-or  color,  De  Cuir 
brought  action  in  the  Eighth  District  Court  for  the  Parish  of 
New  Orleans  because  of  ha\ang  been  refused  accommodatioQS, 

1  See  Smith  v.  Alabama,  124  U.  S.  465  (1888).  —  Ed. 
*  The  reporter's  statement  has  not  been  reprinted.  —  Ed. 


968       commerce:   decisions  since  close  of  civil  war. 

on  account  of  her  color,  in  the  cabin  set  apart  for  white  persons 
on  a  steamboat  enrolled  and  hcensed  under  the  laws  of  the  United 
States,  plyinp;  between  New  Orleans  and  \'icksburg;  and  touch- 
ing atTntermediate  landings  Vjoth  within  and  without  Louisiana. 
The  plaintiff  had  taken  passage  at  New  Orleans  for  Hermitage, 
a  landing  place  in  Louisiana.  The  court  gave  judgment  for  the 
plaintiff;  and  the  Supreme  Court  of  Louisiana  affirmed  the 
judgment. 

R.  H.  Marr,  for  plaintiff  in  error;  and  E.  K.  Washington,  contra. 

Waite,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

There  can  be  no  doubt  but  that  exclusive  power  has  been^cojj- 
ferred  upon  Congress  in  respect  to  the  regulation  of  conunerce 
among  the  several  htaies.  The^ffie^iltv  has  never  been  as  Jo 
the  existenct^  lit  tills  pOW^i,  bufas  to  what  is  to  be  deemed  an 
ericroachmeftt  UPOII  It;  for,  Us  has  t)een  often  said,  "legislation 
may  in  a  great  variety  of  ways  affect  commerce  and  persons  en- 
gaged in  it  ^^^thout  constituting  a  regulation  of  it  Avithin  the 
meaning  of  the  Constitution."  Sherlock  v.  Ailing,  93  U.  S.  103; 
State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284.  Thus,  in 
Munn  V.  Illinois,  94  U.  S.  113,  it  was  decided  that  a  State  might 
regulate  the  charges  of  public  warehouses,  and  in  Chicago,  Bur- 
lington, &  Quincy  Railroad  Co.  v.  Iowa,  Id.  155,  of  railroads 
situate  entirely  within  the  State,  even  though  those  engaged  in 
commerce  among  the  States  might  sometimes  use  the  ware- 
houses or  the  railroads  in  the  prosecution  of  their  business.  .  .  . 
The  line  which  separates  the  powers  of  the  States  from  this  ex- 
clusive power  of  Congress  is  not  always  distinctly  marked,  and 
oftentimes  it  is  not  easy  to  determine  on  which  side  a  particular 
case  belongs.  Judges  not  unfrequently  differ  in  their  reasons  for 
a  decision  in  which  they  concur.  Under  such  circumstances  it 
would  be  a  useless  task  to  undertake  to  fix  an  arbitrary  rule  by 
which  the  line  must  in  all  cases  be  located.  It  is  far  better  to 
leave  a  matter  of  such  delicacy  to  be  settled  in  each  case  upon  a 
view  of  the  particular  rights  involved. 

But  we  think  it  may  safely  be  said  that  State  legislation  which 
seejcs  to  impose  a  direct  burden  upon  interstate  commerce,  or  to 
interfere  directly  A\dth  its  freedom,  does  encroach  upon  the  ex- 
elusive  j)owpr  of  Congress.  Tj^e  statute  now  under  considera- 
tion,  in  our  opinion,  occupies  that  position.  It  does  not  act  upon 
tlit^  bllijilKJ^ij  Lhrougn  the  local  mstruments  to  be  employed  after 
c'ORimg"  A\atlim  the  State,  but  directly  upon  the  business  a^t 
comes  into  the  State   from  without  or  goes  out  from  ^\ithin. 


HALL  V.   DE   CUIR.  969 

While  it  purports  only  to  control  the  carrier  when  engaged  within 
the  State,  it  must  necessarily  influence  his  conduct  to  some  ex- 
tent in  the  mana^,pment  of  his  husiness  thrmighont  his  pntirp 
voyage.  His  disposition  of  passengers  taken  up  and  put  down 
\\ntHin  the  State,  or  taken  up  wdthin  to  be  carried  without,  can- 
not but  affect  in  a  greater  or  less  degree  those  taken  up  without 
and  brought  within,  and  sometimes  those  taken  up  and  put  down 
without.  A  passenger  in  the  cabin  set  apart  for  the  use  of  whites 
without  the  State  must,  when  the  boat  comes  wdthin,  share  the 
accommodations  of  that  cabin  with  such  colored  persons  as  may 
come  on  board  afterwards,  if  the  law  is  enforced. 

It  was  to  meet  just  such  a  case  that  the  commercial  clause  in 
the  Constitution  was  adopted.  The  river  Mississippi  passes 
through  or  along  the  borders  of  ten  different  States,  and  its 
tributaries  reach  many  more.  The  commerce  upon  these  waters 
is  immense,  and  its  regulation  clearly  a  matter  of  national  con- 
cern. If  each  State  was  at  Ijbr^'^y  to  ro^nilMtp  the  mnHnct  t^f 
carriers  while  within  its  jurisdiction,  the  confusion  likely  to 
follow  could  not  r5u^_be_BrQ'^ii^tivp  "f  great  inconvenience  and 
umie£cssary  hardship.  Each  State  could  provide  for  its  own  pas- 
sengers and  regulate  the  transportation  of  its  owti  freight,  re- 
gardless of  the  interests  of  others.  Nay  more,  it  could  prescribe 
rules  by  which  the  carrier  must  be  governed  within  the  State  in 
respect  to  passengers  and  property  brought  from  Avithout.  On 
one  side  of  the  river  or  its  tributaries  he  might  be  required  to 
obser\'e  one  set  of  rules,  and  on  the  other  another.  Commerce 
cannot  flourish  in  the  midst  of  such  embarrassments.  No  carrier 
oT  ]mssengers  can  c^ondudt  his  bu^illUJSS  with  JiratrsfSHTon  to  him- 
self, or  comfort  to  those  employing  him,  if  on  one  side  of  a  State 
Unc  his  passengers,  both  white  and  colored,  must  be  permitted 
to  occupy  the  same  cabin,  and  on  the  other  be  kept  separate. 
Uniformity  in  the  regulations  by  which  he  is  to  be  governed  from 
one  end  to  the  other  of  his  route  is  a  necessity  in  his  business, 
and  to  secure  it  Congress,  which  is  untrammelled  by  State  lines, 
has  been  invested  with  the  exclusive  legislative  power  of  deter- 
mining what  such  regulations  shall  be.  If  this  statute  can  be 
enforced  against  those  engaged  in  interstate  commerce,  it  may 
be  as  well  against  those  engaged  in  foreign;  and  the  master  of  a 
ship  clearing  from  New  Orleans  for  Liverpool,  having  passengers 
on  board,  would  be  compelled  to  carry  all,  white  and  colored,  in 
the  same  cabin  during  his  passage  down  the  river,  or  be  subject 
to  an  action  for  damages,  "exemplary  as  well  as  actual,"  by  any 


970       commerce:   decisions  since  close  of  civil  war. 

one  who  felt  himself  aggrieved  because  he  had  been  excluded  on 
account  of  his  color. 

This  power  of  regulation  may  l)e  exorcised  without  legislation 
as  well  as  with  it.  By  refraining  from  action,  CongressrHTeffect,'" 
adopts  as  its  own  regiijations_those  which  the  common  law  or^e 
civil  lawj  where  that  prevaUs^has  provided  for  the  governmeiit^ 
of  such  business,  and  those  which  the  States,  in  the  regulation 
of  their  domestic  concerns,  have  established  affecting  commerce, 
but  not  regulating  it  within  the  meaning  of  the  Constitution.  In 
fact,  congressional  legislation  is  only  necessary  to  cure  defects 
in  existing  laws,  as  they  are  discovered,  and  to  adapt  such  laws 
to  new  developments  of  trade.  As  was  said  by  Mr.  Justice  Field, 
speaking  for  the  court  in  Welton  v.  The  State  of  Missouri,  91 
U.  S.  282,  ''inaction  [by  Congress]  .  .  .  is  equivalent  to  a  dec- 
laration that  interstate  commerce  shall  remain  free  and  untram- 
melled." Applying  that  principle  to  the  circumstances  of  this 
case,  congressional  inactionleft  lJt^nson_at  liberty^  adopt  such 
reasonable  rules  and  regulations  for  the  disposition  of  passen^^rs 
upoir"!Tis  boat,  while  pursuing~her  voyage  within^Louisiana^or 
without,  as  deemed  to  him  mosWor  the  interest  of  all  concerned. 
The  statute  under  which  this  suit  is  brought,  as  construed  bj^ne 
State  court,  seeks  to  take  away  from  him  that  power  so  Jong,  as 
he  is  within  Louisiana;  and  while  recognizing  to  the  fullest  extent 
the  principle  which  sustains  a  statute,  unless  its  unconstitutional- 
ity is  clearly  established,  we  think  this  statute,  to  the  extent  that 
it.  jpqiiir^^;  those  engaged  Jnthe  transportation  ol  passepgers 
among  the  States  to  carry  colored  passengers  in  Louisiana  Jn_the 
s'ame  cabin  with  wnites,  is  unconstitutional  tin(i_vflkLZ-4f'th5' 
public  good  requires  such  legislation,  it  must  come  from  Congress 
and  no't  from  the  S||fttp-s.  " 

'"^We  confine  p"^  ^'""iiiiff'^  to  the  statute  in  its  effect  upon  foreign 
and  "l^^^«^iflit[g  f^nrnmeree.  expressing  no  opinion  as  to  its  validity 
in  any  other  respect. 

■TnHpjTTiPTit  \^\  [jp  rp|Y^r|=!Pr|  and  the  cause  remanded,  with  in- 
structions to  reverse  the  judgment  of  the  District  Court,  and 
direct  such  further  proceedings  in  conformity  with  this  opinion 
as  may  appear  to  be  necessary;  and  it  is 

So  ordered.^ 

Clifford,  J.,  concurred  in  the  judgment.  .  .  . 

1  Compare  ChUes  v.  Chesapeake  &  Ohio  Ry.  Co.,  218  U.  S.  71  (1910).  — 
Ed. 


PENSACOLA  TELEGRAPH  CO.  V.  WESTERN  UNION  TELEGRAPH  CO.  971 


PENSACOLA  TELEGRAPH  CO.  v.   WESTERN 
UNION  TELEGRAPH  CO. 

Supreme  Court  of  the  United  States.     1878. 
[96  United  States,  1.]  i 

Appeax  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Florida. 

The  Pensacola  Telegraph  Company  filed  a  bill  to  enjoin  the 
Western  Union  Telegraph  Company  from  constructing  and  using 
a  certain  telegraph  line  within  territory  covered  by  a  Florida  act 
of  December  11,  1868,  incorporating  the  former  company  and 
granting  to  it  "the  sole  and  exclusive  privilege  and  right  of  estab- 
lishing and  maintaining  lines  of  electric  telegraph  in  the  counties 
of  Escambia  and  Santa  Rosa,  either  from  different  points  within 
said  counties,  or  connecting  with  lines  coming  into  said  counties, 
or  either  of  them,  from  any  point  in  this  or  any  other  State."  On 
July  24,  1866,  Congress  had  enacted  that  "any  telegraph  com- 
pany now  organized,  or  which  may  hereafter  be  organized,  under 
the  laws  of  any  State  .  .  . ,  shall  have  the  right  to  construct, 
maintain,  and  operate  lines  of  telegraph  through  and  over  and 
along  any  of  the  military  or  post  roads  of  the  United  States  which 
have  been  or  may  hereafter  be  declared  such  by  act  of  Congress, 
and  over,  under,  or  across  the  navigable  streams  or  waters  of  the 
United  States,"  and  that  "any  of  said  companies  shall  have  the 
right  to  take  and  use  from  such  public  lands  the  necessary  stone, 
timber,  and  other  materials  for  its  posts,  piers,  stations,  and  other 
needful  uses,"  and  that  "telegraphic  communications  between 
the  several  departments  of  the  government  .  .  .  shall,  in  their 
transmission  over  the  lines  of  any  of  said  companies,  have  priority 
.  .  . ,  and  shall  be  sent  at  rates  .  .  .  fixed  by  the  Postmaster 
General,"  and  that  "the  United  States  may  .  .  .  purchase  aU  the 
telegraph  lines,  property,  and  effects  of  .  .,.  said  companies  at  an 
appraised  value,"  and  that  "before  any  telegraph  company  shall 
exercise  any  of  the  power  or  privileges  conferred  by  this  act,  such 
company  shall  file  .  .  .  acceptance  ...  of  the  restrictions  and 
obligations  required  by  this  act."  (14  Stat.  221;  R.  S.,  §  5263 
et  seq.)  On  June  5,  1867,  the  Western  Union  Telegraph  Company, 
a  New  York  corporation,  passed  a  resolution  of  acceptance,  which 
was  filed.     All  railroads  in  the  United  States  are  by  law  post- 

1  The  statement  has  been  rewritten.  —  Ed. 


972       commerce:   decisions  since  close  of  civil  war. 

roads  (R.  S.,  sect.  3964;  17  Stat.  308,  sect.  201).  On  February  14, 
1873,  and  Februan-  18,  1874,  a  Florida  statute  authorized  the 
Pensacohi  and  Louisville  Railroad  Company  to  construct  a  tele- 
graph line  along  its  road;  and  on  June  24,  1874,  that  company 
granted  to  the  Western  Union  Telegraph  C'omi)any  the  right  to 
erect  a  telegraph  hne  upon  its  right  of  way,  which  was  within  the 
territory  embraced  by  the  exclusive  grant  to  the  Pensacola  Tele- 
graph Company.  The  Circuit  Court,  upon  hearing,  dismissed 
the  bill. 

C.  W.  Jones,  for  appellant;  and  P.  Belmont,  contra. 
Waite,  C.  J.,  delivered  the  opinion  of  the  court. 
Congress  has  power  "to  regulate  commerce  with  foreign  nations 
and  among  the  several  States"  (Const,  art.  1,  sect.  8,  par.  3); 
and  "to  establish  post  offices  and  post  roads"  (Id.,  par.  7).  The 
Constitution  of  the  United  States  and  the  laws  made  in  pur- 
suance thereof  are  the  supreme  law  of  the  land.  Art.  6,  par.  2. 
A  law  of  Congress  made  in  pursuance  of  the  Constitution  sus- 
pends or  overrides  all  State  statutes  with  which  it  is  in  conflict. 

Since  the  case  of  Gibbons  v.  Ogden  (9  Wheat.  1),  it  hius  never 
been  doubted  that  commercial  intercourse  is  an  element  of  com- 
merce which  comes  within  the  regulating  power  of  Congress. 
Post  offices  and  post  roads  are  established  to  facilitate  the  trans- 
mission of  intelligence.  Both  commerce  and  the  postal  service 
are  placed  within  the  power  of  Congress,  because,  being  national 
in  their  operation,  they  should  be  under  the  protecting  care  of 
the  National  government. 

The  powers  thus  granted  are  not  confined  to  the  instrumentali- 
ties of  commerce,  or  the  postal  service  known  or  in  use  when  the 
Constitution  was  adopted,  but  they  keep  pace  with  the  progress 
of  the  country,  and  adapt  themselves  to  the  new  developments 
of  time  and  circumstances.  They  extend  from  the  horse  with  its 
rider  to  the  stage-coach,  from  the  sailing-vessel  to  the  steam- 
boat, from  the  coach  and  the  steamboat  to  the  railroad,  and 
from  the  railroad  to  the  telegraph,  as  these  new  agencies  are 
successively  brought  into  use  to  meet  the  demands  of  increasing 
population  and  wealth.  They  were  intended  for  the  government 
of  the  business  to  which  they  relate,  at  all  times  and  under  all 
circumstances.  As  they  were  intrusted  to  the  general  govern- 
ment for  the  good  of  the  nation,  it  is  not  only  the  right,  but  the 
duty,  of  Congress  to  see  to  it  that  intercourse  among  the  States 
and  the  transmission  of  intelligence  are  not  obstructed  or  unneces- 
sarily encumbered  by  State  legislation. 


PENSACOLA  TELEGRAPH  CO.  V.   WESTERN  UNION  TELEGRAPH  CO,  973 

The  electric  telegraph  marks  an  epoch  in  the  progress  of  time. 
In  a  little  more  than  a  quarter  of  a  century  it  has  changed  the 
habits  of  business,  and  become  one  of  the  necessities  of  commerce. 
It  is  indispensable  as  a  means  of  inter-communication,  but  espe- 
cially is  it  so  in  commercial  transactions.  The  statistics  of  the 
business  before  the  recent  reduction  in  rates  show  that  more  than 
eighty  per  cent  of  all  the  messages  sent  by  telegraph  related  to 
commerce.  Goods  are  sold  and  money  paid  upon  telegraphic 
orders.  Contracts  are  made  by  telegraphic  correspondence,  car- 
goes secured,  and  the  movement  of  ships  directed.  The  tele- 
graphic announcement  of  the  markets  abroad  regulates  prices  at 
home,  and  a  prudent  merchant  rarely  enters  upon  an  important 
transaction  without  using  the  telegraph  freely  to  secure  in- 
formation. 

It  is  not  only  important  to  the  people,  but  to  the  government. 
By  means  of  it  the  heads  of  the  departments  in  Washington  are 
kept  in  close  communication  with  all  their  various  agencies  at 
home  and  abroad,  and  can  know  at  almost  any  hour,  by  inquiry, 
what  is  transpiring  anywhere  that  affects  the  interest  they  have 
•in  charge.  Under  such  circumstances,  it  cannot  for  a  moment 
be  doubted  that  this  powerful  agency  of  commerce  and  inter- 
communication comes  within  the  controlling  power  of  Congress, 
certainly  as  against  hostile  State  legislation.  ...  It  is  not  neces- 
sary now  to  inquire  whether  Congress  may  assume  the  telegraph 
as  part  of  the  postal  service,  and  exclude  all  others  from  its  use. 
The  present  case  is  satisfied,  if  we  find  that  Congress  has  power, 
by  appropriate  legislation,  to  prevent  the  States  from  placing  ob- 
structions in  the  way  of  its  usefulness. 

The  government  of  the  United  States,  within  the  scope  of.  its 
powers,  operates  upon  every  foot  of  territory  under  its  jurisdic- 
tion. It  legislates  for  the  whole  nation,  and  is  not  embarrassed 
by  State  lines.  Its  pecuUar  duty  is  to  protect  one  part  of  the 
country  from  encroachments  by  another  upon  the  national  rights 
which  belong  to  all. 

The  State  of  Florida  has  attempted  to  confer  upon  a  single 
corporation  the  exclusive  right  of  transmitting  inteUigence  by 
telegraph  over  a  certain  portion  of  its  territory.  This  embraces 
the  two  westernmost  counties  of  the  State,  and  extends  from 
Alabama  to  the  Gulf.  No  telegraph  line  can  cross  the  State  from 
east  to  west,  or  from  north  to  south,  within  these  counties,  ex- 
cept it  passes  over  this  territory.  Within  it  is  situated  an  im- 
portant seaport,  at  which  business  centres,  and  with  which  those 


974       commerce:   decisions  since  close  of  civil  war. 

engaged  in  commercial  pursuits  have  occasion  more  or  less  to 
communicate.  The  United  States  have  there  also  the  necessary 
machinery  of  the  national  government.  They  have  a  navy- 
yard,  forts,  custom  houses,  courts,  post  offices,  and  the  appro- 
priate officers  for  the  enforcement  of  the  laws.  The  legislation  of 
Florida,  if  sustained,  excludes  all  commercial  intercourse  by  tele- 
graph between  the  citizens  of  the  other  States  ami  those  residing 
upon  this  territory,  except  by  the  employment  of  this  corpora- 
tion. The  United  States  cannot  communicate  with  their  own 
officers  by  telegraph  except  in  the  same  way.  The  State,  there- 
fore, clearly  has  attempted  to  regulate  commercial  intercourse 
between  its  citizens  and  those  of  other  States,  and  to  control  the 
transmission  of  all  telegraphic  correspondence  within  its  own 
jurisdiction. 

It  is  unnecessary  to  decide  how  far  tliis  might  have  been  done 
if  Congress  had  not  acted  upon  the  same  subject,  for  it  has  acted. 
The  statute  of  July  24,  18GG,  in  effect,  amounts  to  a  prohibition 
of  all  State  monopolies  in  this  particular.  It  substantially  de- 
clares, in  the  interest  of  commerce  and  the  convenient  transmis- 
sion of  intelligence  from  place  to  place  by  the  government  of  the* 
United  States  and  its  citizens,  that  the  erection  of  telegraph  lines 
shall,  so  far  as  State  interference  is  concerned,  be  free  to  all  who 
will  submit  to  the  conditions  imposed  by  Congress,  and  that  cor- 
porations organized  under  the  laws  of  one  State  for  constructing 
and  operating  telegraph  lines  shall  not  be  excluded  by  another 
from  prosecuting  their  business  within  its  jurisdiction,  if  they 
accept  the  terms  proposed  by  the  national  government  for  this 
national  privilege.  To  this  extent,  certainly,  the  statute  is  a 
legitimate  regulation  of  commercial  intercourse  among  the  States, 
and  is  appropriate  legislation  to  carry  into  execution  the  powers 
of  Congress  over  the  postal  service.  It  gives  no  foreign  corpora- 
tion the  right  to  enter  upon  private  property  without  the  con- 
sent of  the  owner  and  erect  the  necessary  structures  for  its 
business;  but  it  does  provide,  that,  whenever  the  consent  of  the 
owner  is  obtained,  no  State  legislation  shall  prevent  the  occupa- 
tion of  post-roads  for  telegraph  purposes  by  such  corporations 
as  are  willing  to  avail  themselves  of  its  privileges. 

It  is  insisted,  however,  that  the  statute  extends  only  to  such 
military  and  post  roads  as  are  upon  the  public  domain ;  but  this, 
we  think,  is  not  so.  The  language  is,  "Through  and  over  any 
portion  of  the  public  domain  of  the  United  States,  over  and  along 
any  of  the  military  or  post  roads  of  the  United  States  which 


TRADE-MARK   CASES.  975 

have  been  or  may  hereafter  be  declared  such  by  act  of  Congress, 
and  over,  under,  or  across  the  navigable  streams  or  waters  of  the 
United  States."  There  is  nothing  to  indicate  an  intention  of 
limiting  the  effect  of  the  words  employed,  and  they  are,  there- 
fore, to  be  given  their  natural  and  ordinary  signification.  Read 
in  this  way,  the  grant  evidently  extends  to  the  pubhc  domain, 
the  military  and  post  roads,  and  the  navigable  waters  of  the 
United  States.  These  are  all  within  the  dominion  of  the  national 
government  to  the  extent  of  the  national  powers,  and  are,  there- 
fore, subject  to  legitimate  congressional  regulation.  No  ques- 
tion arises  as  to  the  authority  of  Congress  to  provide  for  the 
appropriation  of  private  property  to  the  uses  of  the  telegraph,  for 
no  such  attempt  has  been  made.  The  use  of  pubhc  property 
alone  is  granted.  If  private  property  is  required,  it  must,  so  far 
as  the  present  legislation  is  concerned,  be  obtained  by  private 
arrangement  with  its  owner.  No  compulsory  proceedings  are 
authorized.  State  sovereignty  under  the  Constitution  is  not  in- 
terfered with.     Only  national  privileges  are  granted. 

The  State  law  in  question,  so  far  as  it  confers  exclusive  rights 
upon  the  Pensacola  Company,  is  certainly  in  conflict  with  this 
legislation  of  Congress.  ... 

Field  and  Hunt,  JJ.,  dissented.  .  .  . 

Harlan,  J.,  did  not  sit  in  this  case.  .  .  . 

Decree  affirmed} 


TRADE-MARK   CASES. 
Supreme  Court  of  the  United  States.     1879. 

[100  United  States,  82.]*" 

Certificates  of  division  in  two  cases  from  the  Circuit  Court  of 
the  United  States  for  thTSoutEern  District  of  New  York  and  in 
one  case  from  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  Ohio. 

In  these  cases  there  were  two  indictments  and  one  criminal  in- 
formation for  breaches  of  the  act  of  Aug.  14,  1876,  "to  punish 
the  counterfeiting 'bTlrade-mar^sanii  the  sate~or  dealing  in  of 

1  See  Telegraph 'Co-rTTexasTlOS  U.  S.  460  (1882). 
*  An  abbreviated  statement  has  been  presented.  —  Ed. 


976      commerce:   decisions  since  close  of  civil  wau. 

counterfeit  trade-mark  goods"  (19  Stat.  141),— a  statute  pro- 
viding punishment  for  any  person  who  shall,  with  intent  to  de- 
fraud, make,  have  in  his  possession,  buy,  or  sell,  an  imitation 
of  a  trade-mark  "registered  pursuant  to  the  statutes  of  the 
United  States."  By  U.  S.  R.  S.,  §  4937,  it  was  providetl  that 
any  person,  firm,  or  corporation  "who  are  entitled  to  the  exclusive 
use  of  any  lawful  trade-mark,  or  who  intend  to  adopt  and  use 
any  trade-mark  for  exclusive  use  within  the  United  States,  may 
obtain  protection  for  such  la^vful  trade-mark"  by  recording  it  in 
the  Patent  Office,  paying  a  fee,  etc.  On  demurrer  to  the  indict- 
ments and  to  the  information,  a  division  of  opinion  was  certified 
as  to  the  constitutionality  of  the  act  of  Aug.  14,  1876. 

C.  Devens,  Attorney  General,  for  the  United  States;  and  George 
Hoadly,  contra. 

Miller,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  right  toadopt  antl  use  a  symbol  or  a  device  to  distinguish 
the  goods  or  propeHy^made  or  sold  by  the  person  whose  mark  it 
is,  to  the  exclusion  of  use  by  all  other  persons,  has  been  long 
recognized  by  the  common  law  and  the  chancery  courts  of  Eng- 
land and  of  this  country,  and  by  the  statutes  of  some  of  the 
States.  It  is  a  property  right  for  the  violation  of  which  damages 
may  be  recovered  in  an  action  at  law,  and  the  continued  violation 
of  it  will  be  enjoined  By  a  cmrrt^f-Ctiuity,  with  compensation  for 
past  infringement.  This  exclusive  right  was  not  creaU'd  by  the 
act  of  Congress,  and  does  not  now.deixmd  upon  it  for  its  enforcc- 
mentr~The  wliole  system  of  trade-mark  propoftjc  antl  the  civil 
remedies  for  its  protection  existed  long^it^tmor  to  Ohat  j,ct,  and 
have  remained  in  full  force  since  its  passage.  .  .  . 

As  the  property  in  trade-marks  and  the  right  to  their  ext?Iusive 
use  rest  on  the  laws  of  the  States,  and,  like  the  grca>«b^ly  of  the 
rights  of  person  and  of  property,  depend  on  them  for  security 
and  protection,  the  pojiiufcaif  Congress  to  legislate  on  the  subject, 
to  establish  the  coirftimja^  which  these  rights  shall  be  enjoyed 
and  exercised,  the  ^flSdoi  their  duration,  and  the  legal  remedies 
for  their  enforcement,  if  such  power  exist  at  all,  must  be  found 
in  the  Constitution  of  the  United  States,  which  is  the  source  of 
all  the  powers  that  Congress  can  lawfully  exercise. 

In  the  argument  of  these  cases  this  seems  to  be  conceded,  and 
the  advocates  for  the  validity  of  the  acts  of  Congress  on  this  sub- 
ject point  to  two  clauses  of  the  Constitution,  in  one  or  in  both 
of  which,  as  they  assert,  sufficient  warrant  may  be  found  for  this 
legislation. 


TRADE-MABK  CASES.  977 

The  first  of  these  is  the  eighth  clause  of  section  8  of  the  first 
article.  .  .  . 

Any  attempt,  however,  to  identify  the  essential  characteristics 
of  a  trade-mark  with  inventions  and  discoveries  in  the  arts  and 
sciences,  or  with  the  \\Titings  of  authors,  will  show  that  the  effort 
is  surrounded  with  insurmountable  difficulties.  .  .  . 

The  other  clause  of  the  Constitution  supposed  to  confer  the 
requisite  authority  on  Congress  is  the  third  of  the  same  section, 
which,  read  in  connection  with  the  granting  clause,  is  as  follows: 
"The  Congress  shall  have  power  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with  the 
Indian  tribes." 

The  argument  is  that  theuse-o£--aK-trad£-mark  —  that  which 
alone  girrsit  any  vfelue  —  is  to  identifv  a  particular  class  or 
quality  of  goods  as  the  manufacture,  produce,  or  property  ofthe 
person  who  puts  "them  mthe  general  market  for  sale:  that^he 
aP^^;.of  the  article  so  distmguished  is  commerce j  that  the  trade- 
mark, is,  therefor£^_a-4iseful  and  valuable  aid  or  instrument  of 
commerce,  and  its  regulation  by  virt^if  of  the  clause  belongs  to 
Congress,  and  that  the  act  in  question  is  a  lawful  evprrisp  of  this 
power." 

Every  species  of  property  which  is  the  subject  of  commerce, 
or  wliich  is  used  or  even  essential  m  commerce,  is  not  brought  by 
this~clause  within  the  control  of  Congress.  The  barrels  and 
casks,  the  bottles  and  boxes  in  which  alone  certain  articles  of 
commerce  are  kept  for  safety  and  by  which  their  contents  are 
transferred  from  the  seller  to  the  buyer,  do  not  thereby  become 
subjects  of  congressional  legislation  more  than  other  property. 
Nathan  v.  Louisiana,  8  How.  73.  In  Paul  v.  Virginia,  8  Wall. 
1(38,  this  court  held  that  a  policy  of  insurance  made  by  a  cor- 
poration of  one  State  on  propertj^  situated  in  another,  was  not 
an  article  of  commerce,  and  did  not  come  within  the  purview  of 
the  clause  we  are  considering.  "They  are  not,"  says  the  court, 
"commodities  to  be  shipped  or  forwarded  from  one  State  to  an- 
other, and  then  put  up  for  sale."  On  the  other  hand,  in  Almy  v. 
State  of  California,  24  How.  169,  it  was  held  that  a  stamp  duty 
imposed  by  the  legislature  of  California  on  bills  of  lading  for  gold 
and  silver  transported  from  any  place  in  that  State  to  another 
out  of  the  State,  was  forbidden  by  the  Constitution  of  the 
United  States,  because  such  instruments  being  a  necessity 
to  the  transaction  of  commerce,  the  duty  was  a  tax  upon 
exports. 


978       commerce:   decisions  since  close  of  civil  war. 

The  question,  therefore,  whether  the  trade-mark  bears  such  a 
relation  to  commerce  in  general  terms  as  to  bring  it  within  con- 
gressional control,  when  used  or  applied  to  the  classes  of  com- 
merce which  fall  within  that  control,  is  one  which,  in  the  present 
case,  we  propose  to  leave  undecided.  .  .  . 

A  glance  at  the  commerce  clause  of  the  Constitution  discloses 
.  that  the  power  of  regulation  there  conferred  on  Congress  is 
limited  to  commerce  with  foreign  nations,  commerce  among  the 
States,  and  commerce  with  the  Indian  triljes.  While  bearing  in 
mind  the  lilieral  construction,  that  commerce  with  foreign  nations 
means  commerce  between  citizens  of  the  United  States  and  citi- 
zens and  subjects  of  foreign  nations,  and  commerce  among  the 
States  means  commerce  between  the  individual  citizens  of  differ- 
ent States,  there  still  remains  a  very  large  amount  of  commerce, 
perhaps  the  largest,  which,  being  trade  or  traffic  between  citizens 
of  the  same  State,  is  beyond  the  control  of  Congress. 

When,  therefore,  Congress  undertakes  to  enact  a_law,  which 
can  onlv  be  valid  as  a  yC'gulation  oi  commerce,  it  is  reasonable  to 
pypect^totindon  the  face  of  the  law,  orlrom  its.essentiaj_nature , 
that  it  is  a  regulation  of  commerce  with  foreign  nations,  or  among 
the  several  Stale^^jL[i_  w4tfe-4he-^TKtian  tribcsT  U  not  so  limited, 
it  is  In  excess  of  thelpowerof  Congress.  If  its  main  purpose  be 
to^estabhsh  a  regulation  applicable  to  all  trade,  to  commerce  at 
all  points,  especially  if  it  be  apparent  that  it  is  designed  to  govern 
the  commerce  wholly  between  citizens  of  the  same  St  ate,  J t  is 
obvioi^  the  exercTse^t_a^pqwerTiot  collided  to  Congress! 

We  find  no  recognition  of  this  principlejn  thp  chapter  on  trad,e- 
marks  in  the  Revised  Statutes.  .  .  . 

It  hasn5een~siiggested  that  if  Congress  has  power^_to^  regulate 
trade-marks  used  Inlioinmerce'wTtFToreigrnations_and_a^ 
the  severarsFates,  these  statuTes^shall  be  held  validjnjhat-fib^s 
of  casfiari^no^urtTieE  To" this  there  are  two  objections:  First, 
the  indietmpnts  in  these  cases  -do  not  show  tbft^tbe-trade-ftWkFks 
wViifV.  arp  wrnngfnlly  nspd  wpfp  traHf^-mnrks  used  in  that  kind  of 

commarce.  Secondly^jvvhile  it  may  bfi-inip  that  whgn  one  part 
of  a  statute  is 'valid  and  constitutionalj^and  another  part  is  un- 
constitutional and  void,  the  court  may  enforce  the  valid  pal-t 
where  they  are  distinctly  separaV^le  so  that  laih  «au  -laud  alone, 
it  is  no^  within  the  judicial  province  to  give  to  the  words  used  by 
Corigress  a  narrower  meaj^iag  than-^hey  are  manifestly  intended, 
to  bear  in  order  that  crimes  may  be  punished  which  are  not 
described  in  language  that  brings  them  within  the  constitutional 


LORD   V.   STEAMSHIP   COMPANY.  979 

power  of  that  body.     This  precise  point  was  decided  in  United 
States  V.  Reese,  92  U.  S.  214.  .  .  . 

In  what  we  have  here  said  we  wisH  to  be  understood  as  leaving 
untouched  the  whole  question  of  the  treaty-making  power  over 
trade-marks,  and  of  the  duty  of  Congress  to  pass  any  laws  neces- 
sary to  carry  treaties  into  effect.  .  .  . 

The  questions  in  each  of  these  cases  being  an  inquiry  whether 
these  statutes  can  be  upheld  in  whole  or  in  part  as  valid  and  con- 
stitutional, must  be  answered  in  the  negative;  and  it  will  be 

So  certified  to  the  proper  circuit  courts} 


LORD   V.   STEAMSHIP  COMPANY. 

Supreme  Court  of  the  United  States.     1881. 

(102  United  States,  541.]  ^ 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Dis- 
trict of  California. 

Action  was  brought  against  a  steamship  company  as  a  common 
carrier,  for  goods  on  a  steamship  which  was  totally  lost,  with  all 
pending  freight  and  cargo,  on  a  voyage  from  San  Francisco  to 
San  Diego.  The  company  pleaded  exemption  under  U.  S.  R.  S., 
§4283:  "The  liability  of  the  owner  of  any  vessel  for  any  .  .  . 
loss  ...  of  any  goods  .  .  .  ,  shipped  ...  or  for  any  .  .  .  colli- 
sion, or  for  any  .  .  .  damage  or  forfeiture,  done,  occasioned,  or 
incurred,  without  the  privity  or  knowledge  of  such  owner  .  .  . , 
shall  in  no  case  exceed  the  amount  of  .  .  .  the  interest  of  such 
owner  in  such  vessel  and  her  freight  then  pending."  The  court 
charged  that  if  the  loss  occurred  solely  by  neghgence  of  gbhe 
m'aster,  and  witEout_priyityT knowledge,  or  neglect  of  the  owner, 
the  section  quoted  was  a  perfect  defence,  notwithstanding  the 
goods  when  lost  were  bemgtransported  on  a  journey  the  final 
termmi  of  which  were  dirferent  ports  in  Calij[orma.  An  exception 
was  taken  to  this  cnarge.  ~The  jurv  found  for  the  defendiLnt,  and 
ju^lgment  was  rendered  accordingly. 

1  See  Warner  v.  Searle,  191  U.  S.  195  (1903).  —  Ed. 
*  An  abbreviated  statement  has  been  presented.  —  Ed. 


980      commerce:   decisions  since  close  of  civil  war. 

,S'.  F.  Leib  and  C.  A.  Kent,  for  j)l:iiiitilT  in  error;  imd  J.  E. 
Ward,  contra. 

Waite,  C.  J.,  .  .  .  delivered  tlie  opinion  of  llie  court. 

The  single  question  presented  by  the  assignment  of  errors  is^ 
whether  Congress  has  power  to  reguhite  tiie  HahiUty  of  th(^  owners 
of  vessels  navigating  the  high  seas,  but  enp;aged  only  in  the  trans- 
portation of  goods  ana  passengf^rs  '^^^^^^^^  p^^ts  ap^  places 
in  the  same  State.  It  is  conceded  that  while  the  Ventura  carried 
goods  from  plAftC  to  place  in  California,  her  voyages  were  always 
ocean  voyages. 

Congress  has  power  "to  regulate  commerce  witli  foreign  nations 
and  among  the  several  States,  and  witli  the  Indian  tribes" 
(Const.,  art.  1,  §  8),  but  it  has  nothing  to  do  with  the  purely 
internal  commerce  of  the  States,  that  is  to  say,  with  such  com- 
merce as  is  carried  on  between  different  parts  of  the  same  State, 
if  its  operations  arc  confined  exclusively  to  the  jurisdiction  and 
territory  of  that  State,  ami  do  not  affect  other  nations  or  States 
or  the  Indian  tribes.  This  has  never  l)een  disj^uted  since  the  case 
of  Gil)bons  V.  Ogden,  0  Wheat.  1.  The  contracts  sued  on  in  the 
present  case  were  in  effect  to  carry  goods  from  San  Francisco 
to  S;in  Diego  by  the  way  of  the  Pacific  Ocean.  They  could  not  be 
performed  except  l)y  going  not  only  out  of  California,  but  out  of 
the  United  States  as  well. 

Commerce  includes  intercourse,  navigation,  and  not  traffic 
alone.  This  also  was  settled  in  (iibbons  v.  Ogden,  supra.  "Com- 
merce with  foreign  nations,"  says  Mr.  Justice  Daniel,  for  the 
court,  in  Veazie  /•.  Moor,  14  How.  5fi8,  "must  signify  commerce 
which,  in  some  sense,  is  necessarily  connected  with  these  nations, 
transactions  which  either  immediately  or  at  some  stage  of  their 
progress  must  be  extraterritorial,"  p.  573. 

The  Pacific  Ocean  belongs  to  no  one  nation,  but  is  the  common 
property  of  all.  When,  therefore,  the  Ventura  wentTout  from  San 
Francisco  or  San  Diego  on  her  several  voyages,  she  enterecToh  a 
navigation  which  was  necessarily  connected  with  other  iiatjops. 
While'ciTThe  ocean  heT^iational  character  only  was  recognized, 
and  she  was  subject  to  such  laws  as  the  commercial  nations  of 
the  world  had,  by  usage  or  otherwise,  agreed  on  for  the  govern- 
ment of  the  vehicles  of  commerce  occupying  this  common  prop- 
erty of  all  mankind.  She  was  navigating jimoiig  tke  vessels  of 
other  nations  and  was  treated  by  them  n,s  beloiiging  to  the  coiin- 
try  whose  flag  she  carried.  True,  she  was  not  trading  with  theni, 
but  she  was  navigating  with  ttienL  and  consequently_withjthgra 


COE  V.   ERROL.  981 

was^  engaged  in  commerce.  If  in  lier  navigation  she  inflicted  a 
wrong  on  anotReFcountry,  the  United  States,  and  not  the  State  of 
Cahfornia,  must  answer  for  what  was  done.  In  every  just  sense, 
therefore^  she  was,  while  on  the  ocean,  engaged  in  commerce 'with 
foreign  nations,  and  as^such  she  andUhe  "Biismess  m  which  she  was 
engTigecrwere  suhject  to  the~Tegatating  power_oi -Qongiess. 

Navigajdon  onllie  high  sfMsJa. necessarily  national  in  its  char- 
acter. Such  navigation  is  clearly  a  matter  of  "external  concern," 
aTfoc'ting  the  nation  as  a  nation  in  its  external  affairs.  It  must, 
therefore,  he  subject  to  the  national  government. 

This  disposes  of  the  case,  since,  by  §  4289  of  the  Revised  Stat- 
utes, the  provisions  of  §  4283  are  not  applicable  to  vessels  used 
in  rivers  or  inland  navigation,  and  this  legislation,  therefore,  is 
relieved  from  the  objection  that  proved  fatal  to  the  trade-mark 
law  which  was  considered  in  Trade-Mark  Cases,  100  U.  S.  82. 
The  commerce  regulated  is  expressly  confined  to  a  kind  over 
which  Congress  has  been  given  control.  There  is  not  here,  as  in 
Allen  V.  Newberry,  21  How.  244,  a  question  of  admiralty 
juri.sdiction  under  the  law  of  1845,  but  of  the  power  of  Congress 
over  the  commerce  of  the  United  States.  The  contracts  sued  on 
do  not  relate  to  the  purely  internal  commerce  of  a  State,  but  im- 
pliedly, at  least,  connect  them.selvcs  with  the  commerce  of  the 
world,  because  in  their  performance  the  laws  of  nations  on  the 
high  seas  may  be  involved,  and  the  United  States  compelled  to 
respond. 

Having  found  ample  authority  for  the  act  as  it  now  stands 
in  the  commerce  clause  of  the  Constitution,  it  is  unnecessary 
to  consider  whether  it  is  within  the  judicial  power  of  the  United 
States  over  cases  of  admiralty  and  maritime  jurisdiction. 

Judgment  affirmed. 


COE  V.   ERROL. 
Supreme  Court  of  the  United  States.     1886. 

(116  United  SUdes,  .517.)  i 

Error  to  the  Supreme  Court  of  New  Hampshire. 

In  the  Supreme  Court  of  New  Hampshire  for  Coos  County  Coe 
filed  a  petition  in  September,  1881,  against  the  Town  of  Errol, 
for  abatement  of  taxes.  He  alleged  that  on  April  1,  1880,  he  and 
»  An  abbreviated  statement  ha.s  been  presented.  —  Ed. 


982       commerce:   decisions  since  close  of  civil  war. 

others,  residents  of  Maine  and  Massachusetts,  owned  a  large  num- 
ber of  logs  drawn  down  the  winter  before  from  Wentworth's 
location,  in  New  Hampshire,  and  placed  in  Clear  Stream  and  on 
the  banks  thereof,  in  Errol,  to  be  floated  down  the  Androscoggin 
River  to  Maine  to  be  manufactured  and  sold.  A  further  allega- 
tion was  made  as  to  spruce  logs  belonging  to  Coe  and  another 
person,  which  had  l)een  cut  in  Maine  and  were  on  their  way  to  be 
floated  to  Maine  to  be  manufactured,  but  were  detained  in  Errol 
by  low  water.  Similar  allegations  were  made  as  to  other  logs 
cut  the  following  year  in  New  Hampshire  and  in  Maine.  The 
selectmen  of  Errol  taxed  the  first  two  lots  of  logs  for  the  year 
1880  and  the  other  lots  for  the  year  1881.  The  Androscoggin 
River  is  a  highway,  from  its  source  to  the  outlet  of  Umbagog  Lake, 
for  the  floatage  of  timber  to  Lewiston,  Maine,  and  was  thus  used 
by  Coe  and  his  a.ssociates  for  twenty  years.  On  an  agreed  state- 
ment containing  the  facts  narrated,  the  Supreme  Court  of  New 
Hampshire,  in  September  term,  1882,  gintir  jiidgimmt  that  thn  t-ay 
on  the  logs  cut  inMaine^b('  abaliMl  and  thatliiiLlax  on  the  logs 
dut  in  New  Hampshire  be  sustained. 
TLHeijwood,  for  j ) hunt  iff  InTrror;  and  S.  R.  Bond,  cont]^ 

Bradley,  J.,  delivered  the  opinion  of  the  court.  .  .  . 

Aro  \\\o  products  of  ft  State,  tjiomrhjntencled  fiiJL,£:cportat,ion 
toanotlier  State,  and  partiallv  prepared  for  that  purpose  by  Jij-ing 
deposited  at  aplace  or  port  of  shipment  within  the  State,  liable 
to  be  taxed  like  other  property  witliinJheState? 
"  Doeslfe'owheFs  state  of  mindJn_rclatioiiJo  the  goods^Jhat  is, 
his  intent  to~export  them,  and  his  mrtial  preparatioELJoJo  so, 
^xempTthem  from  taxation?     ThisTs  the  precisequestion  for 

solution. 

This  question  does  not  present  the  predicament  of  goods  in 
course  of  transportation  through  a  State,  though  detained  for  a 
tiine  within  the  State  by  low  water ^r_othei_£aii^i£a--of  del;)y,^s 
wasTihe  case  of  the  logs  cut  m  the  State  of  Maine,  the  tax  on 
which  was  abated  by  the  Supreme  Court  of  New  Hampshire. 
Such  goodf^  ^re  «)rep''^y  ^^  tho  course  of  commercial^jtransftorta- 
tioii,  a-ncTare  clearly  under  thc_p'-otprtion  of  the  Constitution, 
^nd^so,  we  think,  would_the_gQ£Kls  in  qiiostion  be  when  actually 
started" in  the  course  ofJrans]2ortaliQft-4»-ftftather  Statp,  or  de- 
hvered  to  a  carrier  for  such  transportation.  Theremust_^  a 
point  oTtime  when  they  cease  to  be  go\^ned^jj^cnJsvvR3rb^I1h^ 


d(5mestjcjaw  and  begin  to  be  governed  and_protected  by_tli£_jia- 
tionaTiaw  of  commercial  regulation,  andlhat  moment  seems  to 


COE  V.   ERROL.  983 

usjo  be  a  legitimate  one  for  this  purpose,  in  which  thev  com- 
mence their  rinal  movement  tor  transportation  from  the  State 
-  uMht-u  ongm  IP  that  ot  their  destin"atlqn:  When  the  products 
of  the  farm  or  the  forest  are  collected  and  brought  in  from  the 
surrounding  country  to  a  town  or  station  serving  as  an  entrepot 
for  that  particular  region,  whether  on  a  river  or  a  line  of  railroad, 
such  products  are  not  yet  exports,  nor  are  they  in  process  of  ex- 
portation, nor  is  exportation  begun  until  thev  are  committed  to 
the  common  carrier  for  transportation  out  nf  fh^  State  to  Jhe 
Stjle_oQheir  destination,  or  have  started  on  their  ultimate 
parage  tojhat  State  Until  then  it  is  reasonable  to  regard 
them  as  not  only  within  the  State  of  their  origin,  but  as  a  part 
of  the  general  mass  of  property  of  that  State,  subject  to  its  juris- 
diction, and  liable  to  taxation  there,  if  not  taxed  by  reason  of 
their  being  intended  for  exportation,  but  taxed  without  any  dis- 
crimination, in  the  usual  way  and  manner  in  which  such  property 
is  taxed  in  the  State. 

Of  coursj^^y  cannot  be  taxed  as  exports;  that  is  to  sav.  thev 
cannot  be  taxed  by  reason  or  because  of  their  exportation  or 
intended  exportation;  for  that  would  amount  to  laying  a  duty 
on" exports,  and  would  be  a  plain  infraction  of  the  Constitution, 
which  prohibits  any  State,  without  the  consent  of  Congress,  from 
laying  any  imposts  or  duties  on  imports  or  exports;  and,  although 
it  has  been  decided,  Woodruff  v.  Parham,  8  Wall.  123,  that  this 
clause  relates  to  imports  from,  and  exports  to,  foreign  countries, 
yet  when  such  imposts  or  duties  are  laid  on  imports  or  exports 
from  one  State  to  another,  it  cannot  be  doubted  that  such  an  im- 
position  would  be  a^r^^gul^itinn  of  commerce  among;  the  States,  and. 
t herefore,  void  as  an  invasion  of  the  exclusive  power  of  Congress . 
See  Walling  v.  Michigan,  116  U.  S.  446,  decided  at  the  present 
term,  and  cases  cited  in  the  opinion  in  that  case.  But  if  such  goods 
are  not  taxed  as  exports,  nor  by  reason  of  their  exportation,  or 
intended  exportation,  but  are  taxed  as  part  of  the  general  mass 
of  property  in  the  State,  at  the  regular  period  of  assessment  for 
such  property  and  in  the  usual  manner,  they  not  being  in  course 
of  transportation  at  the  titoe,  is  there  any  valid  reason  why  they 
should  not  be  taxed?  Though  intended  for  exportation,  they  may 
never  be  exported;  the  o'UTier  has  a  perfect  right  to  change  his 
mind;  and  until  actually  put  in  motion,  for  some  place  out  of  the 
State,  or  committed  to  the  custody  of  a  carrier  for  transportation 
to  such  place,  why  may  they  not  be  regarded  as  still  remaining  a 
part  of  the  general  mass  of  property  in  the  State?    If  assessed  in 


984       commerce:   decisions  since  close  of  civil  wak. 

an  exceptional  time  or  manncr^cause  of  their  anticipated  de- 
parture,  they  ini}:;ht  well  be  considered  as  taxed  by  roa-son  of _their 
-^^^^^gjj^jTvp-r^T^^  Imt  if  assessed  m  the"usuar 

way,  when  not  uiuler  motion  or  shipinmt,  we  do  not  see  why  the 
assessment  may  not  l)e_valnl  and  bindinR. 

^rTirf)omroi  time  xvTieiTstah'  jurisdiction  over  the  commodities 
of  commerce  begins  and  ends  is  n(^t  an  ea.<y  matter  to  designate 
or  define,  and  yet  it  is  highly  important,  l>oth  to  the  shipixT  and 
to  the  State,  that  it  should  l)e  clearly  defined  so  jus  to  avoid  all 
ambiguity  or  question.  In  regard  to  imi)orts  from  foreign  coun- 
tries, it  was  settled  in  the  case  of  Brown  v.  Maryland.  12  Wheat. 
419,  that  the  State  cannot  impose  any  tax  or  duty  on  such  goods 
so  long  as  they  remain  the  i)roperty  of  the  imi)orter.  and  continue 
in  the  original  form  or  packages  in  which  they  were  import eil; 
the  right  to  sell  without  any  restriction  imi)osed  l»y  the  State 
being  a  necessary  incident  of  the  right  to  iniiM)rt  without  such 
restriction.  ... 

But  no  definite  rule  has  been  adopted  with  regard  to  the  point 
of  time  at  which  the  taxing  power  of  the  State  ceiuses  as  to  goods 
exported  to  a  foreign  country  or  to  another  State.  What  we  have 
already  said,  however,  in  relation  .to  the  products  of  a  State  in- 
tended for  exportation  to  another  State  will  indicate  the  view 
which  seems  to  us  the  sound  one  on  that  subject,  namely,  that 
such  goods  do  not  cease  to  i)e  part  of  the  general  nuu^s  of  i)rop<Tty 
in  the  State,  snbjret.  ns  such,  to  its  juris(]ictjon,  and  to  taxation 
in  the  usualwav.  until  thev  have  i)e<-n  shipix-d,  or  (Mil(Te(l_vdLti  a 
common  carrier  for  transpt)rtation  to  another  State,  or  have  l)een 
sTarti'd  UI-RTmruch  transportaiTi)n_ilUi.':o'iliiuiuus^r()ute  or  journey. 
We  think  that  this  nuist  i)e  the  true  rule  on  the  subject.  It  seems 
to'us  untenable  to  hold  that  a  crop  or  a  herd  is  exempt  from  taxa- 
tion merely  because  it  is,  by  its  owner,  intended  for  exportation. 
If  such  were  the  rule  in  many  States  there  would  be  nothing  but 
the  lands  and  real  estate  to  bear  the  taxes.  .  .  .  The  carrying  of 
them  in  carts  or  other  vehicles,  or  even  floating  them,  to  the  depot 
where  the  journey  is  to  commence  is  no  part  of  that  journey. 
That  is  all  preliminary  work,  performed  for  the  purpose  of  putting 
the  property  in  a  state  of  preparation  and  readiness  for  transporta- 
tion. Until  actually  launched  on  its  way  to  anothM;_State;  or 
committed  to  acomm6n~carrier  for  transportation  to  such  gta.te, 
its  destmation  is  not  fixed  and  certain.  It  may  be  sold  or  other- 
wisiTHisposed  of  witMn  the  State,  and  ncver^ut  in  course  of 
transportation  out  ofthe  estate.    Carrymg  iiTromThe  farm,  or  the 


morgan's   steamship   CO.   V.   LOUISIANA   BOARD   OF  HEALTH.    985 

forest,  to  the  depot,  is  only  an  interior  movement  of  the  property, 
entirely  within  the  State,  for  the  purpose,  it  is  true,  but  only  for 
the  purpose,  of  putting  it  into  a  course  of  exportation;  it  is  no 
part  of  the  exportation  itself.  UntUshipped  or  started  on  its  final 
journey  out  of  the  State  its  exportatioinsTmatter  altogether  in 
fieri,  and  not  at  all  a  fixed  and  certain  thing."^T^         ~~ 

'  '       '       '  ■     —      -  -■ ^ 

Affirmed.^ 


MORGAN'S  STEAMSHIP  CO.  v.  LOUISIANA  BOARD  OF 

HEALTH. 

Supreme  Court  of  the  United  States.     1886. 

[118  Untied  Slates,  455.] » 

Error  to  the  Supreme  Court  of  Louisiana. 

In  the  Civil  District  Court  for  the  Parish  of  Orleans,  the  steam- 
slnp^ompany  jorii>^cl^_an_injun^tb^^  i>Iphibitmg  collecting~tKe 
fees,  umTer  the  Louisiana  statute  of  July  1,  1882,  for  the  examina^ 
tion  whicD  tlie  quarantine  laws  of  the  Statfi-xeqmred^^fi-lo-vessds 
passing  the  quarantine  station  on  the  Mississippi  River  —  $30 
for  every  ship,  S2()  for  every  bark,  -SlO  for  every  brig,  $7.50  for 
every  schooner,  $5  for  every  steamboat  (towboats  excepted),  $30 
for  every  steamship.  The  injimction  was  granted;  but  the  decree 
w:is  reversed  bv  the  Suprem^H'^irt  oTT^nni-^iaTin  (36  La.  Ann. 
666). 

H.  J.  Leovy  and  J.  E.  McDonald,  for  plaintiff  in  error;  and 
F.  C.  Zacharie  and  W.  M.  Events,  contra. 

Miller,  J delivered  the  opinion  of  the  court. 

The  services  for  which  these  fees  are  to  be  collected  are  parts 
of  a  system  ofquarantine  provided  by  the  laws~of  Louisiana.lor 
the  protection  "of  the  State,  and  especially  of  New  Orleans,  an  im- 
portant  commercial  city,  from  infectious  and  contagious  diseases 
which  might  be  brought  there  by  vessels  coming  through  the 
Gulf  of  Mexico  from  all  parts  of  the  world,  and  up  the  Mississippi 
River  to  New  Orleans. 

This  system  of  quarantine  differs  in  no  essential  respect  from 

»  See  Kelley  v.  Rhoads,  188  U.  S.  1  (1903);  Diamond  Match  Co.  v.  On- 
tonagon, 188  U.  S.  82  (1903);  General  Oil  Co.  v.  Crain,  209  U.  S.  211  (1908). 
—  Ed. 

*  An  abbreviated  statement  has  been  presented.  —  Ed. 


986       commerce:   decisions  since  close  of  civil  war. 

similar  systems  in  operation  in  all  important  seaports  all  over 
the  world,  where  commerce  ami  civilization  prevail.  .  .  . 

Of  all  the  elements  of  this  quarantine  system  of  the  State  of 
Louisiana,  the  onjy  featurejvhich  is  assailed  as  imconstitu^ional 
is  that  which  requires  that  the  ve^lsjwhicli  arcLexaminecl  at  the 
quarantine  station,  wHFlrspecr  to  their  sanitary  condition  and 
that  of  their  passengers,  shall  pay  the  compensaUoiLwhich J]xe 
law  fixes  for  this  service. 

This  compensation  isj?alled  a  tonnage  tax,  forbidden  hy  the 
Constitiition  ot  the  Lnitc(r^at"es;  a  regulation  of  coflUncrcr  ex- 
clusively within  the  power  of  Congress:  and  also  a  regulation 
which  gives  a  preference  to  the  port  of  New  Orleans  over  jgorts  of 
other  States.  These  are^gravo  allegations  withlrgard  to  the  exer- 
cise of  a  power  which,  in  all  countries  and  in  all  the  ports  of  the 
United  States,  has  been  considered  to  be  a  part  of,  and  incident 
to,  the  power  to  establisli  (juarantine.  We  must  examine  into  this 
proposition  and  see  if  anything  in  the  Constitution  sustains  it. 
Is  this  requirement  that  each  vessel  shall  pay  the  ofFicer  who  ex- 
amines it  a  fixed  compensation  for  that  service  a  tax?  A  tax  is 
defined  to  be  "a  contribution  imposed  by  government  on  individ- 
uals for  the  service  of  the  State."  It  is  argued  that  a  part  of  these 
fees  go  into  the  treasury  of  the  State  or  of  the  city,  and  it  is  there- 
fore levied  as  part  of  the  revenue  of  the  State  or  city  and  for  that 
purpose.  But  an  examination  of  the  statute  shows  that  t^hej^i; 
cess  of  the  feesj^Llhis, officer  over  his  salary  is  paid  into  the  city 
treasury  to  constitute  a  fund  wholly  devoted  to  quarantine  ex- 
penses and  that  no  part  ot  it  ever  goes  to  defray  the  expenses  of 
the  STate  or  city  government. 

That  the  vessel  itself  has  the  primary  and  deenest  interest  ^fi 
this , examination  it  is  easy  to  see.  It  is  nhvinn^ly  to  her  interest, 
in  the  pursuit  of  her  business,  that  she  enter  the  city  anddcpart 
from  it^iren  from  tlie_ suspicion  which,  at  certain  times,  ^HacR^ 
to  all  vessels  coming  from  the  Gulf.  This  she  obtains  by  the  ex- 
amination  and  can  obtain  in  no  other  way.  If  the  law  did  not 
make  this  provision  for  ascertaining  her  freedom  from  infection, 
it  would  be  compelled  to  enact  more  stringent  and  more  expensive 
penalties  against  the  vessel  herself,  when  it  was  found  that  she 
had  come  to  the  city  from  an  infected  port  or  had  brought  con- 
tagious persons  or  contagious  matter  with  her;  and  throwing  the 
responsibility  for  this  on  the  vessel,  the  heaviest  punishment 
would  be  necessary  by  fine  and  imprisonment  for  any  neglect  of  the 
duty  thus  imposed.    The  State  now  says  you  must  submit  to  this 


morgan's  steamship  CO.   V.   LOUISIANA  BOARD  OF  HEALTH.    987 

examination.  If  j'ou  appear  free  of  objection,  you  are  relieved  by 
the  officer's  certificate  of  all  responsibility  on  that  subject.  If 
you  are  in  a  condition  dangerous  to  the  pubKc  health,  you  are 
quarantined  and  reheved  in  this  manner.  For  this  examination 
and  fumigation  you  must  pay.  The  danger  comes  from  you,  and 
though  it  may  turn  out  that  in  your  case  there  is  no  danger,  yet 
as  you  belong  to  a  class  from  which  all  this  kind  of  injury  comes, 
you  must  pay  for  the  examination  which  distinguishes  you  from 
others  of  that  class.  It  seems  to  us  that  this  is  much  more  glearly 
a  fair  charge  against  the  vessel  than  that  of  half^^gilota^gp,  where 
th^  pilot's  services  are  declined,  and  where  all  the  pilot  has  done 
is  toToffer  himself .  This  latter  has  been  so  repeatedly  helcLt^Lbe 
aT  valid  charge,  though  made^  under  State  laws,  as  to  need  no 
citatIons~lO""»astain  it. 

In  all  cases  of  this  kind  it  has  l)cen  repeatedly  held  that,  when 
the  question  is  raised  whether  tjie  State  statute  is  a  just  exercise 
of~State  nower  or  is  intencletTby  roundabout  means  to  invade  the 
domatirgf  Federal  inTTTTontyTthis  court  will  look  into  the  opjxa- 
tion  and  effect  of  the  statute  to  discern  its  purpose.  See  Hender- 
sonTTMayor  of  New  York792  U.  S.  259;  Chy  Lung  v.  Freeman,  92 
U.  S.  275;  Cannon  v.  New  Orleans,  20  Wall.  587. 

In  the  case  of  Packet  Co.  v.  St.  Louis,  100  U.  S.  423,  where  a  city 
wharfage  tax  was  assailed  on  the  same  ground  as  the  fee  in  the 
present  case,  the  court  said  the  fee  was  a  fair  equivalent  for  the 
use  of  the  wharf.  .  .  . 

But,  conce(hng  it  to  be  a  tax,  in  what  sense  can  it  be  called  a 
tonnage  tax?  The  cases  of  State  Tonnage  Tax,  12  Wall.  204; 
Peete  v.  Morgan,  19  Wall.  581;  Cannon  v.  New  Orleans,  20  Wall. 
577;  Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  238,  are  all  cited 
antl  relied  on  to  show  that  this  is  a  tonnage  tax.  But  in  all  these 
cases  the  contribution  exacted  was  measured  by  the  tonnage  of 
the  vessel  in  express  terms;  and  the  decision  of  the  court  rested 
on  that  fact.  .  .  . 

In  the  present  case  we  are  of  opinion  that  tl;i£  fee  nomplaineckof 
is  not  a  tonnage  tax,  that,  in  fact,  it  is  nqt_aiax  witliin  the  true 
meaning  oTlEarword  a5  used  in  the  Constitution,  but  is  a  com- 
pensation for  a  service  rendered^  as  part  of  the  quarantine  ■S.vstem 
of  a11_r;n^]ptrips,  t^  ihp.  vessel  whjch  receives  the  fPrtificate  that 
declares  it  free  from  further  quarantine  requirements. 

Is  fhe  law  under  consideration  void  as  a  regulation  of  commerce? 
TTndoiibtpdlv  it  is  in  '^omp  sense  a  regulation  of  commerce.  It  arrests 
a  vessel  on  a  YftY^f^^  ^^\rh  XUM  '"^^^^  ^*'''"  ^  ^""^  9"^-     ^^  ^^y 


988      commerce:   decisions  since  close  of  civil  war. 

affect  commerce  among  the  States  when  the  vessel  is  coming  from 
some  other  State  of  the  Union  than  Louisiana,  and  it  may  affect 
commerce  with  foreign  nations  when  the  vessel  arrested  comes 
from  a  foreign  port.  This  interruption  of  the  voyage  may  be  for 
days  or  for  weeks.  It  extends  to  the  vessel,  the  cargo,  the  officers 
and  seamen,  and  the  passengers.  In  so  far  as  it  provides  a  rule 
by  which  this  power  is  exercised,  it  cannot  be  denied  that  it  regu- 
lates commerce.  We  do  not  think  it  necessary  to  enter  into  the 
inquiry  whether,  notwithstanding  this,  it  is  to  be  classed  among 
those  police  powers  wliich  were  retained  by  the  States  as  exclu- 
sively their  own,  and,  therefore,  not  ceded  to  Congress.  For, 
while  it  may  l)e  a  police  power  in  the  sense  that  all  provisions  for 
the  health,  comfort,  and  security  of  the  citizens  arc  jK>lice  regula- 
tions, and  an  exercise  of  the  police  power,  it  has  been  said  more 
than  once  in  this  court  that,  even  where  such  jxiwcrs  are  so  exer- 
cised as  to  come  within  the  tlomain  of  Fcnleral  authority  as  defined 
by  the  Constitution,  the  latter  must  prevail.  Gibbons  v.  Ogden,  9 
Wlieat.  1,  210;  Henderson  v.  The  Mayor,  02  V.  S.  250,  272;  New 
Orleans  Gas  Co.  v.  Louisiana  Ligiit  Co.,  115  U.  S.  (ioO,  001. 

But  it  may  be  conceded  that  ^vhenever  Congress  shall  under- 
take to  provide  for  the  commerciaTcitics  ot  the  Cnited  States  a 
general  system  of  quarantine,  or  shall  confide  tiie  execution  of 
the  details  of  such  a  system  to  a  National  i^oard  ot  Mealth,  or  to 
local  boards,  us  mav  Ije  found  extx^dient,  all  State  laws  on  the 
suljject  will  be  abrogated,  at  letust  so  far  as  the  two  are  mconsist- 
ent.  But,  until  this  isjlone,  the  laws  of  the  State  on  the  subject 
are  valid.    This  follows  from  two  reasons :         '  ' 

1.  The  act  of  1790,  the  main  features  of  which  are  embodied  in 
Title  LVm.  of  the  Revised  Statutes,  clearly  recognizes  the  quar- 
antine laws  of  the  States,  and  requires  of  the  officers  of  the 
Treasury  a  conformity  to  their  provisions  in  dealing  with  vessels 
affected  by  the  quarantine  system.  And  this  very  clearly  has  rela- 
tion to  laws  created  after  the  passage  of  that  statute,  as  well  as  to 
those  then  in  existence;  and  when  by  the  act  of  April  20,  1878, 
20  Stat.  37,  certain  powers  in  this  direction  were  conferred  on  the 
Surgeon-General  of  the  Marine  Hospital  Service,  and  consuls  and 
revenue  officers  were  required  to  contribute  services  in  preventing 
the  importation  of  disease,  it  was  provided  that  "there  shall  be  no 
interference  in  any  manner  with  any  quarantine  laws  or  regula- 
tions as  they  now  exist  or  may  hereafter  be  adopted  under  State 
laws,"  showing  very  clearly  the  intention  of  Congress  to  adopt  these 
laws,  or  to  recognize  the  power  of  the  States  to  pass  them. 


morgan's  steamship  CO.   V.   LOUISIANA  BOARD  OF  HEALTH.  989 

2.  But,  aside  from  this,  quarantine  laws  belong  to  that  class 
of  State  legislation  which,  whether  passed  with  intent  to  regulate 
commerce  or  not,  must  be  admitted  to  have  that  effect,  and  which 
are  valid  until  displaced  or  contravened  by  some  legislation  of 
Congress. 

The  matter  is  one  in  which  the  rules  that  should  govern  it  may 
in  many  respects  be  different  in  different  locaUties,  and  for  that 
reason  be  better  understood  and  more  wisely  established  by  the 
local  authorities.  The  practice  which  should  control  a  quarantine 
station  on  the  Mississippi  River,  a  hundred  miles  from  the  sea, 
may  be  widely  and  wisely  different  from  that  which  is  best  for 
the  harbor  of  New  York.  In  this  respect  the  case  falls  within  the 
principle  which  governed  the  cases  of  Willson  v.  Blackbird  Creek 
Marsh  Co.,  2  Pet.  245;  Cooley  v.  The  Board  of  Wardens,  12  How. 
299;  Oilman  v.  Philadelphia,  3  Wall.  713,  727;  Pound  v.  Turck, 
95  U.  S.  459,  462;  Hall  v.  De  Cuir,  95  U.  S.  485,  488;  Packet  Co. 
V.  Catlettsburg,  105  U.  S.  559,  562;  Transportation  Co.  v.  Parkers- 
burg,  107  U.  S.  691,  702;  Escanaba  Co.  v.  Chicago,  107  U.  S.  678. 

This  principle  has  been  so  often  considered  in  this  court  that  ex- 
tended comment  on  it  here  is  not  needed.  Quarantine  laws  are  so 
analogous  in  most  of  their  features  to  pilotage  laws  in  their  relation 
to  commerce  that  no  reason  can  be  seen  why  the  same  principle 
should  not  apply.  .  .  . 

For  the  period  of  nearly  a  century  since  the  government  was 
organized  Congress  has  passed  no  quarantine  law,  nor  any  other 
law  to  protect  the  inhabitants  of  the  United  States  against  the 
invasion  of  contagious  and  infectious  diseases  from  abroad.  .  .  . 
No  doubt  they  beheved  that  the  power  to  do  this  belonged  to  the 
States.  Or  if  it  ever  occurred  to  any  of  its  members  that  Congress 
might  do  something  in  that  way,  they  probably  believed  that 
what  ought  to  be  done  could  be  better  and  more  wisely  done  by 
the  authorities  of  the  States  who  were  familiar  with  the  matter. 

But  to  be  told  now  that  the  requirement  of  a  vessel  charged 
with  contagion,  or  just  from  an  infected  city,  to  submit  to  ex- 
amination and  pay  the  cost  of  it  is  forbidden  by  the  Constitution 
because  only  Congress  can  do  that,  is  a  strong  reproach  upon 
the  wisdom  of  a  hundred  j'ears  past,  or  an  overstrained  con- 
struction of  the  Constitution. 

It  is  said  that  the  charge  to  the  vessel  for  the  officer's  ser\ace 
in  examining  her  is  not  a  necessary  part  of  quarantine  system.  It 
has  always  been  held  to  be  a  part  in  all  other  countries,  and  in  all 
quarantine  stations  in  the  United  States.    No  reason  is  perceived 


990       commerce:   decisions  since  close  of  civil  war. 

for  selecting  this  item  from  the  general  system  and  calHng  it  a 
regulation  of  commerce,  wliile  the  remainder  is  not.  If  the  arrest 
of  the  vessel,  the  detention  of  its  passengers,  the  cleansing  process 
it  is  ordered  to  go  through  with,  are  less  important  as  regula- 
tions of  commerce  than  the  exaction  of  the  examination  fee,  it  is 
not  easily  to  be  seen. 

We  think  the  propo.sition  untenable. 

There  remains  to  be  considered  the  objection  that  the  law  is 
forbidden  by  paragraph  six  of  section  nine  of  the  first  article  of 
the  Constitution,  which  declares  that  "no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the  ports  of 
one  State  over  those  of  another." 

It  is  not  readily  perceived  how  this  quarantine  statute  of 
Louisiana,  and  particularly  the  fees  of  the  quarantine  officers, 
do  give  such  a  preference.  Are  the  ports  of  Louisiana  given  a 
preference  over  ports  of  other  States?  Are  the  ports  of  any  other 
State  given  a  preference  over  tho.se  of  Louisiana?  Or  are  the 
ports  of  other  States  given  a  preference  as  among  themselves? 
Nothing  of  this  is  pointed  out. 

The  eighth  section  of  this  first  article  of  the  Constitution  is 
devoted  exclusively  to  defining  the  powers  conferred  on  Congress. 

The  ninth  section,  including  the  above  paragraph,  is  in  like 
manner  devoted  to  restraints  upon  the  power  of  Congress  and 
of  the  national  government;  and  the  tenth  section  contains 
only  restraints  upon  the  i)owers  of  the  States,  by  declaring  wliat 
they  shall  not  do.  The  most  casual  inspection  shows  this,  and 
the  clause  of  the  Constitution  here  relied  on  is  not  found  among 
the  restrictions  of  the  States,  but  among  those  impo.sed  upon  the 
Federal  government.  As  the  matter  under  discussion  is  the  valid- 
ity of  the  statute  of  Louisiana,  it  is  unaffected  l)y  the  constitu- 
tional provision  alluded  to.  Woodbury,  J.,  in  Passenger  Cases,  7 
How.  283,  541;  The  Brig  Wilson  v.  United  States,  1  Brock.  423, 
432;  Butler  v.  Hopper,  1  Wash.  C.  C.  499;  Pennsylvania  v.  Wheel- 
ing Bridge  Co.,  18  How.  421,  435;  Munn  v.  Illinois,  94  U.  S.  113, 
135. 

We  see  no  error  in  the  judgment  of  the  Supreme  Court  of  Loui- 
siana, and  it  is 

Affirmed.^ 

Bradley,  J.,  dissented. 

»  Compare  RaUroad  Company  v.  Husen,  95  U.  S.  465  (1878).  —  Ed. 


WABASH,    ST.    LOUIS  AND   PACIFIC   RAILWAY   CO.    V.   ILLINOIS.    991 


WABASH,    ST.   LOUIS   AND   PACIFIC   RAILWAY   CO. 

V.  ILLINOIS. 

Supreme  Court  of  the  United  States.     1886. 
[118  United  States,  557.]  i 

Error  to  the  Supreme  Court  of  Illinois. 

In  the  Circuit  Court  of  Ford  County  an  action  was  brought 
against  the  railway  company  for  breach  of  an  Illinois  statute  (R.  S. 
111.,  c.  114,  fT^)  forbidding  any  railroad  corporation  to  charge 
for  transporting  any  passenger  or  freight  any  distance  within  the 
State  "tne  same  or  a  greater  amount  .  .  .  than^^  tor  transport- 
ing in  the  same  direction  any  passenger  ^rjbhelike  quantity  of 
freight  of  the  same  class  over  a  greater  distance  ot  the  game  road, 
and  further  providing  a  penalty  of  not  over  $5,000  and  a  rightl)f 
recovery  of  treble  damages  by  the  person  aggrieved.  The  decla- 
ration alleged  a  charge  of _fifteen_ cents  a  hundredweightJor_a_c^'^r- 
load  of  goods  from  Peoria  to  the  city  of  New  York  and  on  the  same 
day  a  charge  ot  rwenty-n  v'l^  ^^'i?  a  huiidred weight  on  a  similar 
car-ioad  trom  Uilman  to  the  city  of  New  York,  anJaTTegedrtheTor- 
mer  car-load  was  carried  86  miles  farther  in  lUinoislKanTheTaller. 
The  company  pleaded  that  in~The~chaTgesllTe~sefvice  rendefecTln 
Illinois  was  not  apportioned,  that  the  statute  did  not  control  trans- 
portation from  Illinois  to  the  State  of  New  York,  and  that  the 
company  relied  upon  the  commerce  clause  of  the  Constitution  of 
the  United  States.  The  case  was  tried  on  an  agreed  state- 
ment; and  the  company  requested  the  court  to  hold  that  the 
statute  did  not,  and  could  not,  apply  to  service  rendered  mostly 
outside  Illinois.  Judgment  was  given  against  the  company  and 
Wiis  affirmed  by  ^the_Supreme~TTourt  of  IllinQJs.  " 

H.  L.  Greene,  for  plaintiff  in  error;  and  George  Hunt,  Attorney 
General  of  Illinois,  contra. 

Miller,  J.,  dehvered  the  opinion  of  the  court.  .  .  . 

Although  the  precise  point  presented  by  this  case  may  not  have 
been  heretofore  decided  by  this  court,  the  general  subject  of  the 
power  of  the  State  legislatures  to  regulate  taxes,  fares,  and  tolls 
for  passengers  and  transportation  of  freight  over  railroads  within 
their  limits  has  been  very  much  considered  recently:  —  State 
Freight  Tax  Case,  15  Wall.  232;  Munn  v.  Ilhnois,  94  U.  S.  113; 
Chicago,  Burhngton  &  Quincy  Railroad,  v.  Iowa,  94  U.  S.  155; 

'  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed, 


992       commerce:   decisions  since  close  of  civii,  wah. 

Peik  V.  Northwestern  Railway,  94  U.  S.  164;  Stone  v.  Farmers' 
Loan  and  Trust  Co.,  116  U.  S.  307;  r.louccster  Ferry  Co.  v. 
Pennsylvania,  114  U.  S.  196,  204;  Pickard  r.  Pullman  Southern 
Car  Co.,  117  U.  S.  34:  —  and  the  question  how  far  such  regula- 
tions, made  by  the  States  and  under  State  authority,  are  valid  or 
void,  as  they  may  affect  the  tran.sportation  of  good.s  throuj^h  more 
than  one  State,  in  one  voyage,  is  not  entirely  new  here.  The 
Supreme  Court  of  Illinois,  in  the  ca.se  now  before  us,  conceding 
that  each  of  these  contracts  was  in  it.self  a  unit,  and  that  the  pay 
received  by  the  Illinois  Railroad  Company  was  the  compensation 
for  the  entire  transportation  from  the  ix)int  of  departure  in  the 
State  of  IlUnois  to  the  city  of  New  York,  holds,  that  while  the 
statute  of  Illinois  is  inoperative  upon  that  part  of  the  contract 
which  has  reference  to  the  transportation  outside  of  the  State,  it  is 
binding  and  effectual  as  to  so  much  of  the  transjwrtation  as  was 
within  the  limits  of  the  State  of  Illinois,  The  People  r.  The  Waba.sh, 
St.  Louis  &  Pacific  Railway,  104  111.  476;  and,  undertaking  for 
itself  to  apportion  the  rates  charged  over  the  whole  route,  de- 
cides that  the  contract  and  the  receipt  of  the  money  for  so  much 
of  it  as  was  performed  within  the  State  of  Illinois  violate  the 
statute  of  the  State  on  that  subject. 

If  the  Illinois  statute  could  be  construed  to  apply  exclusively 
to  contracts  for  a  carriage]which  ])egins  and  ends  withfn  the 
State,  disconnected  from  a  continuous  transportation  1 1 1 rough 
or  into  other  States,  there  does  not  seem  to  be  any  difficuTtyin 
holdintJ!;  it  to  be  valid.   .   .  . 

The  Supreme  Court  of  Illinois  having  in  this  case  given  an  in- 
terpretation which  makes  it  apply  to  what  we  understandto  be 
commeFce  among  the  States,  although  the  contract  was  made 
within  the  State  of  Illinois,  and  a  part  of  its  performance  was  wifTiin 
the  same  State^  we  are  bound,  in  this  court,  to  accept  that  con- 
struction. It  becomes,  therefore,  necessary  to  inquire  whether  the 
charge  exacted  from  the  shippers  in  this  case  was  a  charge  for 
interstate  transportation,  or  was  susceptible  of  a  division  which 
would  allow  so  much  of  it  to  attach  to  commerce  strictly  within 
the  State,  and  so  much  more  to  commerce  in  other  States.  The 
transportation,  which  is  the  subject-matter  of  the  contract,  being 
the  point  on  which  the  decision  of  the  case  must  rest,  was  it  a 
transportation  limited  to  the  State  of  Illinois,  or  was  it  a  trans- 
portation covering  all  the  hues  between  Oilman  in  the  one  case 
and  Peoria  in  the  other  in  the  State  of  Illinois,  and  the  city  of 
New  York  in  the  State  of  New  York? 


W'ABAStt,    ST.    LOUIS   AND   PACIFIC   RAILWAY   CO.   V.    ILLINOIS.    993 

The  Supreme  Court  of  Illinois  does  not  place  its  judgment  in 
the  present  case  on  the  ground  that  the  transportation  and  the 
charge  are  exclusively  State  commerce,  but,  conceding  that  it 
may  be  a  case  of  commerce  among  the  States,  or  interstate  com- 
merce, which  Congress  would  have  the  right  to  regulate  if  it  had 
attempted  to  do  so,  argues  that  this  statute  of  Ilhnois  belongs  to 
that  class  of  commercial  regulations  which  may  be  established  by 
the  laws  of  a  State  until  Congress  shall  have  exercised  its  power 
on  that  subject.  .  .  .  The  Suprerrie  Court  of  Ilhnois  cites  the  cases 
of  Munn  v.  Illinois,  Chicago,  Burhngton  &  Quincy  Railroad  v. 
Iowa,  and  Peik  v.  Northwestern  Railway,  above  referred  to.  It 
cannot  be  denied  that  the  general  language  of  the  court  in  these 
cases,  upon  the  power  of  Congress  to  regulate  commerce,  may  be 
susceptible  of  the  meaning  which  the  Illinois  court  places  upon 
it.  .  .  . 

The  question  of  the  right  of  the  State  to  regulate  the  rates  of 
fares  and  tolls  on  railroads,  and  how  far  that  right  was  affected 
by  the  commerce  clause  of  the  Constitution  of  the  United  States, 
was  presented  to  the  court  in  those  cases.  And  it  must  be  admitted 
that,  in  a  general  way,  the  court  treated  the  cases  then  before  it  as 
belonging  to  that  class  of  regulations  of  commerce  which,  Uke 
pilotage,  Ijridging  navigable  rivers,  and  many  others,  could  be 
acted  upon  by  the  States  in  the  absence  of  any  legislation  by 
Congress  on  the  same  subject. 

By  the  slightest  attention  to  the  matter  it  will  be  readily  seen 
that  the  circumstances  under  which  a  bridge  may  be  authorized 
across  a  navigable  stream  within  the  limits  of  a  State,  for  the  use 
of  a  public  highway,  and  the  local  rules  which  shall  govern  the 
conduct  of  the  pilots  of  each  of  the  varying  harbors  of  the  coasts 
of  the  United  States,  depend  upon  principles  far  more  limited  in 
their  application  and  importance  than  those  which  should  regu- 
late the  transportation  of  persons  and  property  across  the  half 
or  the  whole  of  the  continent,  over  the  territories  of  half  a  dozen 
States,  through  which  they  are  carried  without  charge  of  car  or 
breaking  bulk. 

Of  the  members  of  the  court  who  concurred  in  those  opinions, 
there  being  two  dissentients,  but  three  remain,  and  the  writer  of 
tliis  opinion  is  one  of  the  three.  He  is  prepared  to  take  his  share 
of  the  responsibility  for  the  language  used  in  those  opinions,  in- 
cluding the  extracts  above  presented.  He  does  not  feel  called 
upon  to  say  whether  those  extracts  justify  the  decision  of  the 
Illinois  court   in   the  present  case.     It  will  be  seen,   from  the 


994       commerce:   decisions  since  close  of  civil  war. 

opinions  themselves,  and  from  the  arguments  of  counsel  pre- 
sented in  the  reports,  that  the  question  did  not  receive  any- 
very  elaborate  consideration,  either  in  the  opinions  of  the  court 
or  in  the  arguments  of  counsel.  And  the  question  how  far  a 
charge  made  for  a  continuous  transportation  over  several  States, 
which  included  a  State  whose  laws  were  in  question,  may  be 
divided  into  separate  charges  for  each  State,  in  enforcing  the 
power  of  the  State  to  regulate  the  fares  of  its  railroads,  was 
evidently  not  fully  consitlered.  .  .  . 

The  case  of  the  State  Freight  Tax,  15  Wall.  232,  which  was 
decided  only  four  years  before  these  ciises,  held  an  act  of  the 
Legislature  of  Pennsylvania  voitl,  tus  being  in  conflict  with  the 
commerce  clause  of  the  Constitution  of  the  United  States,  which 
levied  a  tax  upon  all  freight  carried  through  the  State  by  any 
railroad  company,  or  into  it  from  any  other  State,  or  out  of  it  into 
any  other  State,  and  valid  as  to  all  freight  the  carriage  of  which 
was  begun  and  ended  within  the  limits  of  the  State,  because  the 
former  was  a  regulation  of  interstate  commerce,  and  the  latter  was 
a  commerce  solely  within  the  State  which  it  had  a  right  to  regulate. 
And  the  question  now  under  consideration,  whether  the.se  stat- 
utes were  of  a  class  which  the  legislatures  of  the  States  could  enact 
in  the  absence  of  any  act  of  Congress  on  the  subject,  was  consid- 
ered and  decided  in  the  negative. 

It  is  impossible  to  see  any  distinction  in  its  effect  upon  commerce 
of  either  cla.ss,  between  a  statute  which  regulates  tiie  charges  for 
transportation,  and  a  statute  which  levies  a  tax  for  the  benefit  of 
the  State  upon  the  same  transportation;  and,  in  fact,  the  judg- 
ment of  the  court  in  the  State  Freight  Tax  Case  restctl  upon  the 
ground  that  the  tax  was  always  added  to  the  cost  of  transporta- 
tion, and  thus  was  a  tax  in  effect  upon  the  privilege  of  carrying  the 
goods  through  the  State.  It  is  also  ver>'  difficult  to  believe  that 
the  court  consciously  intended  to  overrule  the  first  of  these  cases 
without  any  reference  to  it  in  the  opinion. 

At  the  very  next  term  of  the  court  after  the  delivery  of  these 
opinions,  the  case  of  Hall  v.  De  Cuir,  95  U.  S.  485,  was  decided, 
in  which  the  same  point  was  considered.  .  .  . 

It  is  not  easy  to  see  how  any  distinction  can  be  made,  ^yhat- 
QZSL-fflay  be  the  instrumentahties  by  which  this  transportation 
from__the  one  point  to  the  other  is  effected,  it  isHjut  one  voyage, 
a»-iBttah--Sa.  as  that  ot^he  steamboat  on  the_MississippLBiY£i;. 
It  is  not  thp  rRi1rnads~jKemgjBlvHS  lllMlrflrp  rpgnlated  by  this  act 
of  the  Ilhnois  Legislature  so  much  as  the  charge  for  transpoitar 


WABASH,    ST.    LOUIS   AND   PACIFIC   RAILWAY   CO.    V.   ILLINOIS.    995 

tion,  and,  in  language  just  cited,  if  each  one  of  the  States  through 
whoseterritories  these^oods  areiransported  can  fix  JtTT^wiLiiLL^s 
for  prices,  for  modes  of  transit,  for  times  and  modes  of  dehvery, 
and  all  the  other  incidents  of  transportation  to  which  the  word 
"regulation"  can  be  applied,  itjs  readily  seen  that  the  embarrass- 
ment§  upon  interstate  transportation,  as_Rn_jTgnpnt  n?  inferji^tc 
commerce^ight  be  too  oppressive  to  be  submitted  to,  "It  was," 
in  t^ie  language  of  the  court  cited  above,  'Ho  meet  just  such  a  case 
that  the  commerce  clause  of  the  Constitution  was  adopted." 

It  cannot  be  too  strongly  insisted  upon  that  the  right  of  con- 
tinuous  transportation  from  one  end  of  the  country "tolhe  other 
is  essential  In  modern  times  to  thaT7reedom~qr^mmerce~frmn 
the  restraints  wliich  tlie^State  might  choose  to  impose  upon  itT 
tTiat  the  commerce  clause  was  intendeCtoIseci^T~This~claTi5e, 
giving  to  Congress  the  power  to  regulate  commerce"among~tlie 
States  ;ma~with  foreign  nations,  as  this  court  has  ?aTcn)efDre7-was 
among.  tliiLJiii^important  of  the  subjects-wMck  prompted  the 
formation  of  the  Constitution.  Cook  v.  Pennsylvania,  97  U.  S. 
5GG,  574;  Brown  v.  MaryTand,  12  Wheat.  419,  446.  And  it  would 
be  a  very  feeble  and  ahnost  useless  provision,  but  poorly  adapted 
to  secure  the  entire  freedom  of  commerce  among  the  States Vhich 
was  deemed  essential  to  a  more  perfect  Union  by  the  framers  of  the 
Constitution,  if,  at  every  stage  of  the  transportation  of  goods  and 
chattels  through  the  country,  the  State  within  whose  limits  a 
part  of  tliis  transportation  must  be  done  could  impose  regula- 
tions concerning  the  price,  compensation,  or  taxation,  or  any  other 
restrictive  regulation  interfering  with  and  seriously  embarrassing 
tlii.s  commerce. 

The  argument  on  this  subject  can  never  be  better  stated  than 
it  is  by  Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  Wheat.  1, 
195-6.  He  there  demonstrates  that  commerce  amon^  the  States, 
like  commerce  with  foreign  nations,  is  necessarily  aTommerce 
wjiich__crosses  State  lines,  and  extends  into  the  Statfia^land^the 
power  of  Congress  to  repculate  it  exists  wherever  jthatcommerce 
is  found.  .  .  .1  " 

We  must,  therefore,  hold  that  it  is  not,_^nrl  npvpr  >iQaj^££Q^ 

1  Here  were  cited  Telegraph  Co.  v.  Texas,  105  U.  S.  460,  465  (1882);  Wel- 
ton  V.  Missouri,  ante,  p.  960  (1876);  County  of  Mobile  v.  Kimball,  102  U.  S. 
691,  702  (1881);  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196,  204 
(1885);  Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  34  (1886);  and 
Railroad  Commission  Cases  (Stone  v.  Farmers'  Loan  and  Trust  Co.),  116 
U.  S.  307  (1886).  — Ed. 


996       commerce:   decisions  since  close  of  civil  \\\u. 

the  deliberate  opinion  of  aJn?')ftri^V  ^'^  *^''^i^  court  that  a  statute 
of*'K*15T!rt:F"ir!TicTrHtempts  to  roguhtte  the  fares  and  charges  by 
railroad  companies  within  its  Umits,  for  a  transportatioiT  uTTich 
conjtitutes  a  part  of  commerce  amon^  the  h>tates,  is  a  valuTlaw. 

Let  us  see  precisely  wMut  is  llic  ili'urin'  oTlnterference  with 
transportation  of  projx^rty  or  persons  from  one  State  to  another 
which  this  statute  proiX)ses.  A  citizen  of  New  York  has  goods 
which  he  desires  to  have  transported  l)y  the  railroad  companies 
from  that  city  to  the  interior  of  the  State  of  Illinois.  A  continu- 
ous line  of  rail  over  which  a  car  loaded  with  these  goods  can  be 
carried,  and  is  carried  habitually,  connects  the  place  of  shipment 
with  the  place  of  delivery.  He  undertakes  to  make  a  contract  with 
a  person  engaged  in  the  carrying  business  at  the  end  of  this  route 
from  whence  the  goods  are  to  start,  and  he  is  told  by  the  carrier, 
"I  am  free  to  make  a  fair  and  reasonable  contract  for  this  carriage 
to  the  line  of  the  State  of  Illinois,  but  when  the  car  which  carries 
these  goods  is  to  cross  the  Une  of  that  State,  pursuing  at  the  same 
time  this  continuous  track,  I  am  met  by  a  law  of  Illinois  which 
forbids  me  to  make  a  free  contract  concerning  this  transportation 
within  that  State,  and  subjects  me  to  certain  rules  by  which  I 
am  to  be  governed  a,s  to  the  charges  which  the  siime  railroad 
company  in  Illinois  may  make,  or  Ikis  made,  with  reference  to 
other  persons  and  other  places  of  deUverj-."  So  that  while  that 
carrier  might  be  willing  to  carr>'  these  goods  from  the  city  of  New- 
York  to  the  city  of  Peoria  at  the  rate  of  fifteen  cents  per  hun- 
dred pounds,  he  is  not  permitted  to  do  so  because  the  Illinois 
railroad  company  has  already  charged  at  the  rate  of  twenty-five 
cents  per  hundred  pounds  for  carriage  to  Oilman,  in  Illinois,  which 
is  eighty-six  miles  shorter  than  the  distance  to  Peoria. 

So,  also,  in  the  present  case,  the  owner  of  corn,  the  principal 
product  of  the  country,  desiring  to  transport  it  from  Peoria,  in 
Illinois,  to  New  York,  finds  a  railroad  company  willing  to  do  this 
at  the  rate  of  fifteen  cents  per  hundred  pounds  for  a  car-load,  but 
is  compelled  to  pay  at  the  rate  of  twenty-five  cents  per  hundred 
pounds,  because  the  railroad  company  has  received  from  a  person 
residing  at  Oilman  twenty-five  cents  per  hundred  pounds  for  the 
transportation  of  a  car-load  of  the  same  class  of  freight  over  the 
same  line  of  road  from  Oilman  to  New  York.  This  is  the  result  of 
the  statute  of  Illinois,  in  its  endeavor  to  prevent  unjust  discrim- 
ination, as  construed  by  the  Supreme  Court  of  that  State.  The 
effect  of  it  is,  that  whatever  may  be  the  rate  of  transportation  per 
mile  charged  by  the  railroad  compaSy  from  Oilman  to  Sheldon, 


PHILA.   AND   SOUTHERN  STEAMSHIP   CO.    V.   PENNSYLVANIA.      997 

a  distance  of  twenty-three  miles,  in  whicji^the  loading  and  the 
unloading  of  the  freight  is  the  largest_expense_incurred  by  tie 
railroad  company,  the  same  rat_e  per  mile  must  be  changed  from 
Peoria~t?rtlre-Tit5rof  XewTorlc  '.  .  . 

When  It  IS  attempted  to  apply  to  transportation  through  an 
entire  series  of  States  a  principle  of  this  kind,  and  each  one  of  the 
States  shall  attempt  to  estabhsh  its  own  rates  of  transportation, 
its  own  methods  to  prevent  discrimination  in  rates,  or  to  permit 
it,  the  deleterious  influence  upon  the  freedom  of  commerce  among 
the  States  and  upon  the  transit  of  goods  through  those  States  can- 
not be  overestimated.  That  this  species  of  regulation  is  one  which 
must  be,  if  established  at  all,  of  a  general  and  national  character, 
and  cannot  be  safely  and  wisely  remitted  to  local  rules  and  local 
regulations,  we  think  is  clear  from  what  has  already  been  said. 
And  if  it  be  a  regulation  of  commerce,  as  we  think  we  have  demon- 
strated it  is,  and  as  the  Ilhnois  court  concedes  it  to  be,  it  must  be 
of  that  national  character,  and  the  regulation  can  only  appropri- 
ately exist  by  general  rules  and  principles,  which  demand  that  it 
should  be  done  by  the  Congress  of  the  United  States  under  the 
commerce  clause  of  the  Constitution. 

The  judgment  of  the  Supreme  Court  of  Illinois  is  therefore 

Reversed,  and  the  case  remanded  to  that  court  for  further  proceed- 
ings in  conformity  unth  this  opinion. 

Bradley,  J.,  with  whom  concurred  Waite,  C.  J.,  and  Gray,  J., 
dissenting.  .  .  . 


PHILADELPHIA    AND    SOUTHERN    STEAMSHIP    CO. 
V.  PENNSYLVANIA. 

Supreme  Court  of  the  L'nited  States.     1887. 
[122  UnUed  States,  326.]  i 

Error  to  the  Supreme  Court  of  Pennsylvania. 

Action  was  brought  in  the  Common  Pleas  of  Dauphin  County 
for  tax  and  penalties  due  from  the  steamship  company.  A 
Pennsylvania  statute  of  March  20,  1877,  enacted  that  "every 
railroad  company,  canal  company,  steamboat  company,  slack- 
water  navigation  company,  transportation  company,  street  pas- 
*  An  abbreviated  statement  has  been  presented.  —  Ed. 


998       commerce:   decisions  since  close  of  civil  wau. 

senger  railway  company,  and  every  other  company  now  or 
hereafter  incorporated  by  .  .  .  this  commonwealth,  or  .  .  .  by 
anyother  state,  and  doing  business  in  this  commonwealth,  and  .  .  . 
engaged  in  .  .  .  transix)rting  freight  or  passengers,  and  every 
telegraph  company  .  .  .  doing  business  in  this  commonwealth, 
and  every  express  company,  .  .  .  palace-car  and  sleeping-car 
company,  .  .  .  doing  business  in  this  commonwealth,  shall  pay 
...  a  tax  of  eight-tenths  of  one  per  centum  upon  the  gross 
receipts  ...  for  tolls  and  transportation,  telegraph  business, 
or  express  business."  A  similar  act  was  p:ussed  on  June  7,  1879. 
The  action  was  based  on  these  statutes.  The  company  pleaded 
that  it  operated  steamships  engaged  in  ocean  transportation 
between  different  States  and  l)etween  the  United  States  and 
foreign  countries,  that  the  steamships  were  enrolled  or  registered 
under  the  laws  of  the  United  States  for  coasting  or  foreign  trade, 
and  that  the  gross  receipts  were  received  wholly  for  freight  and 
passengers  and  charters  in  such  interstate  and  foreign  business. 
It  was  agreed  that  the  facts  were  a,^  stated  in  the  plea,  and,  trial 
by  jury  being  dispensed  with,  judgment  was  given  against  the 
company.  The  judgment  was  affirmed  by  the  Supreme  Court  of 
Pennsylvania. 

M.  P.  Henry  for  plaintiff  in  error;  and  W.  S.  Kirkpatrick, 
Attorney  General  of  Pennsylvania,  and  another,  contra. 

Bradley,  J.,  .  .  .  dehvered  the  opinion  of  the  court. 

The  question  which  underhcs  the  immediate  question  in  the 
case  is,  whether  the  imposition  of  the  tax  upon  the  steamship 
company's  receipts  amounted  to  a  regulation  of,  or  an  interfer- 
ence with,  interstate  and  foreign  commerce,  and  was  thus  in 
conflict  with  the  power  granted  by  the  Constitution  to  Con- 
gress? The  tax  was  le\ied  directly  upon  the  receipts  derived 
by  the  company  from  its  fares  and  freights  for  the  transportation 
of  persons  and  goods  between  different  States,  and  between  the 
States  and  foreign  countries,  and  from  the  charter  of  its  vessels 
which  was  for  the  same  purpose.  This  transportation  w^as  an 
act  of  interstate  and  foreign  commerce.  It  was  the  carrjdng  on 
of  such  commerce.  It  was  that,  and  nothing  else.  In  view  of  the 
decisions  of  this  court,  it  cannot  be  pretended  that  the  State 
could  constitutionally  regulate  or  interfere  with  that  commerce 
itself.  But  taxing  is  one  of  the  forms  of  regulation.  It  is  one  of 
the  principal  forms.  Taxing  the  transportation,  either  by  its 
tonnage,  or  its  distance,  or  by  the  number  of  trips  performed, 
or  in  any  other  way,  would  certainly  be  a  regulation  of  the  com- 


PHILA.   AND   SOUTHERN   STEAMSHIP   CO.   V.   PENNSYLVANIA.      999 

merce,  a  restriction  upon  it,  a  burden  upon  it.  Clearly  this  could 
not  be  done  by  the  State  without  interfering  with  the  power  of 
Congress.  Foreign  commerce  has  been  fully  regulated  by  Con- 
gress, and  any  regulations  imposed  by  the  States  upon  that  branch 
of  commerce  would  be  a  palpable  interference.  If  Congress  has 
not  made  any  express  regulations  with  regard  to  interstate  com- 
merce, its  inaction,  as  we  have  often  held,  is  equivalent  to  a  dec- 
laration that  it  shall  be  free,  in  all  cases  where  its  power  is 
exclusive;  and  its  power  is  necessarily  exclusive  whenever  the 
subject-matter  is  national  in  its  character  and  properly  admits 
of  only  one  uniform  system.  See  the  cases  collected  in  Robbins 
r.  Shelby  Taxing  District,  120  U.  S.  489,  492,  493.  Interstate 
commerce  carried  on  by  ships  on  the  sea  is  surely  of  this  character. 
If,  then,  the  commerce  carried  on  by  the  plaintiff  in  error  in 
this  case  could  not  be  constitutionally  taxed  by  the  State,  could 
the  fares  and  freights  received  for  transportation  in  carrying  on 
that  commerce  be  constitutionally  taxed?  If  the  State  cannot  tax 
the  transportation,  may  it,  nevertheless,  tax  the  fares  and  freights 
received  therefor?  WTiere  is  the  diiference?  Looking  at  the  sub- 
stance of  things,  and  not  at  mere  forms,  it  is  very  difficult  to  see 
any  difference.  The  one  thing  seems  to  be  tantamount  to  the 
other.  It  would  seem  to  be  rather  metaphysics  than  plain  logic 
for  the  State  officials  to  say  to  the  company:  "We  will  not  tax 
you  for  the  transportation  you  perform,  but  we  will  tax  you  for 
what  you  get  for  performing  it."  Such  a  position  can  hardly  be 
said  to  be  based  on  a  sound  method  of  reasoning. 

This  court  did  not  so  rea.son  in  the  case  of  Brown  v.  Maryland, 
12  Wheat.  419.  ... 

The  apphcation  of  this  reasoning  to  the  case  in  hand  is  obvious. 
Of  what  use  would  it  be  to  the  shipowner,  in  carrying  on  interstate 
and  foreign  commerce,  to  have  the  right  of  transporting  persons 
and  goods  free  from  state  interference,  if  he  had  not  the  equal  right 
to  charge  for  such  transportation  without  such  interference? 
The  very  object  of  his  engaging  in  transportation  is  to  receive 
pay  for  it.  If  the  regulation  of  the  transportation  belongs  to  the 
power  of  Congress  to  regulate  commerce,  the  regulation  of  fares 
and  freights  receivable  for  such  transportation  must  equally 
belong  to  that  power;  and  any  burdens  imposed  by  the  State  on 
such  receipts  must  be  in  conflict  with  it.  To  apply  the  language 
of  Chief  Justice  Marshall,  fares  and  freights  for  transporta- 
tion in  carrjdng  on  interstate  or  foreign  commerce  are  as  much 
essential  ingredients  of  that  commerce  as  transportation  itself. 


1000     commerce:    decisions  since  close  of  civil  wau. 

It  is  necessary,  however,  that  we  should  examine  what  hearing 
the  cases  of  the  State  Freight  Tax,  and  Ruihvay  dross  Receipts, 
reported  in  15th  of  Wallace,  have  upon  the  question  in  hand.  .  .  . 

At  the  same  time  that  the  Case  of  State  Freight  Tax  was 
decided,  the  other  case  referred  to,  namely,  that  of  State  Tax 
on  Railway  Gross  Receipts,  was  also  decided,  and  the  opinion 
was  delivered  by  the  same  member  of  the  court.  15  Wall.  284. 
This  was  also  a  Ciise  of  a  tax  imposed  upon  the  Reading  Railroad 
Company.  It  arose  under  another  act  of  Assembly  of  Penn- 
sylvania, passed  in  February',  1866,  by  which  it  was  enacted  that 
"in  addition  to  the  taxes  now  provided  by  law,  every  railroad, 
canal  and  transportation  company  incorporated  under  the  laws 
of  this  commonwealth,  anil  not  lial)le  to  the  tax  upon  income  under 
existing  laws,  shall  pay  to  the  commonwealth  a  tax  of  three- 
fourths  of  one  per  centum  upon  the  gross  receipts  of  said  company; 
the  said  tax  shall  be  paid  semiannually."  Under  this  statute  the 
accounting  officers  of  Pennsylvania  stated  an  account  against 
the  Reading  Railroad  Company  for  tax  on  gross  receipts  of  the 
company  for  the  half  year  ending  December  31,  1807.  These 
receipts  were  derived  partly  from  the  freight  of  goods  transported 
wholly  within  the  Stat(>,  and  partly  from  the  freight  of  goods 
exported  to  points  without  the  State,  which  latter  were  discrimi- 
nated from  the  former  in  tiie  reports  made  by  the  company.  It 
was  the  tax  on  the  latter  receipts  which  formed  the  subject  of 
controversy.  The  same  line  of  argument  wius  taken  at  the  bar 
as  in  the  other  case.  This  court,  however,  held  the  tax  to  be 
constitutional.  The  grounds  on  which  the  opinion  wivs  based,  in 
order  to  distinguish  this  case  from  the  preceding  one,  were  two: 
first,  that  the  tax,  being  collectible  only  once  in  six  months, 
was  laid  upon  a  fund  which  had  become  the  property  of  the  com- 
pany, mingled  with  its  other  property,  and  incorporated  into  the 
general  mass  of  its  property,  possibly  expendetl  in  improvements, 
or  otherwise  invested.  The  case  is  likened,  in  the  opinion,  to  that 
of  taxing  goods  w'hich  have  been  imported,  after  their  original 
packages  have  been  broken,  and  after  they  have  been  mixed  with 
the  mass  of  property  in  the  country,  which,  it  was  said,  are  con- 
ceded in  Brown  v.  Maryland  to  be  taxable. 

This  reasoning  seems  to  have  much  force.  But  is  the  analogy 
to  the  case  of  imported  goods  as  perfect  as  is  suggested?  When 
the  latter  become  mingled  with  the  general  mass  of  property  in 
the  State,  they  are  not  followed  and  singled  out  for  taxation  as 
imported  goods,  and  by  reason  of  their  being  imported.    If  they 


PHILA.    AND   SOUTHERN  STEAMSHIP   CO.   V.   PENNSYLVANIA.       1001 

were,  the  tax  would  be  as  unconstitutional  as  if  imposed  upon  them 
whilst  in  the  original  packages.    When  mingled  with  the  general 
mass  of  property  in  the  State  they  are  taxed  in  the  same  manner 
as  other  property  possessed  by  its  citizens,  without  discrimination 
or  partiality.    We  held  in  Welton  v.  Alissouri,  91  U.  S.  275,  that 
goods  brought  into  a  State  for  sale,  though  they  thereby  become 
a  part  of  the  mass  of  its  property,  cannot  be  taxed  by  reason  of 
their  being  introduced  into  the  State,  or  because  they  are  the  prod- 
ucts of  another  State.    To  tax  them  as  such  was  expressly  held  to 
be  unconstitutional.     The  tax  in  the  present  case  is  laid  upon  the 
gross  receipts  for  transportation  as  such.    Those  receipts  are  fol- 
lowed and  caused  to  be  accounted  for  by  the  company,  dollar 
for  dollar.     It  is  those  specific  receipts,  or  the  amount  thereof 
(which  is  the  same  thing),  for  which  the  company  is  called  upon 
to  pay  the  tax.    They  are  taxed  not  only  because  they  are  money, 
or  its  value,  but  because  they  were  received  for  transportation. 
No  doubt  a  shipowner,  like  any  other  citizen,  may  be  personally 
taxed  for  the  amount  of  his  property  or  estate,  without  regard  to 
the  source  from  which  it  was  derived,  whether  from  commerce, 
or  banking,  or  any  other  employment.     But  that  is  an  entirely 
different  thing  from  laying  a  special  tax  upon  his  receipts  in  a 
particular  employment.    If  such  a  tax  is  laid,  and  the  receipts  taxed 
are  those  derived  from  transporting  goods  and  passengers  in  the 
way  of  interstate  or  foreign  commerce,  no  matter  when  the  tax 
is  exacted,  whether  at  the  time  of  realizing  the  receipts,  or  at  the 
end  of  every  six  months  or  a  year,  it  is  an  exaction  aimed  at  the 
commerce  itself,  and  is  a  burden  upon  it,  and  seriously  affects  it. 
A  review  of  the  question  convinces  us  that  the  first  ground  on  which 
the  decision  in  State  Tax  on  Railway  Gross  Receipts  was  placed 
is  not  tenable;    that  it  is  not  supported  by  anything  decided  in 
Brown  v.  Maryland;   but,  on  the  contrar>^,  that  the  reasoning  in 
that  case  is  decidedly  against  it. 

The  second  ground  on  which  the  decision  referred  to  was  based 
was,  that  the  tax  was  upon  the  franchise  of  the  corporation  granted 
to  it  by  the  State.  We  do  not  think  that  this  can  be  affirmed  in 
the  present  case.  It  certainly  could  not  have  been  intended  as  a 
tax  on  the  corporate  franchise,  because,  by  the  terms  of  the  act, 
it  was  laid  equally  on  the  corporations  of  other  States  doing  busi- 
ness in  Pennsylvania.  If  intended  as  a  tax  on  the  franchise  of  doing 
business,  —  which  in  this  case  is  the  business  of  transportation 
in  carrj-ing  on  interstate  and  foreign  commerce,  —  it  would 
clearly  be  unconstitutional.    It  was  held  by  this  court  in  the  case 


1002     commerce:   decisions  since  close  of  civil  war. 

of  Gloucester  Ferry  Company  v.  Pennsylvuiiia,  114  V.  S.  VM], 
that  interstate  commerce  carried  on  by  corporations  is  entitled 
to  the  same  protection  ap;ainst  State  exactions  which  is  ^ivcn  to 
such  commerce  when  carried  on  by  individuals.  .  .  . 

There  is  another  point,  however,  which  may  properly  deserve 
some  attention.  Can  the  tax  in  this  case  be  regarded  as  an  in- 
come tax?  and,  if  it  can,  does  that  make  any  difference  as  to  ita 
constitutionality?  We  do  not  think  that  it  can  profx^rly  l)e  re- 
garded as  an  income  tax.  It  is  not  a  general  tax  on  the  incomes 
of  all  the  inhal)itants  of  the  State;  but  a  special  tax  on  transjKirta- 
tion  companies.  Conceding,  however,  that  an  income  tax  may 
be  imposed  on  certain  classes  of  the  community,  distinguished  by 
the  character  of  their  occupations;  this  is  not  an  income  tax  on  the 
class  to  which  it  refers,  but  a  tax  on  their  receipts  for  transjXDrta- 
tion  only.  Many  of  the  companies  included  in  it  may,  and  un- 
doubtedly do,  have  incomes  from  other  sources,  such  as  rents  of 
houses,  wharves,  stores,  and  water-power,  and  interest  on 
moneyed  investments.  As  a  tax  on  transportation,  we  have 
already  seen  from  the  quotations  from  the  State  Freight  Tax 
Case  that  it  cannot  be  supported  where  that  transportation  is 
an  ingredient  of  interstate  or  foreign  commerce,  even  though  the 
law  imposing  the  tax  be  expressed  in  such  general  terms  a.s  to 
include  receipts  from  transportation  which  are  properly  taxable. 
It  is  unnecessar>'',  therefore,  to  discuss  the  question  which  would 
arise  if  the  tax  were  properly  a  tax  on  income.  It  is  clearly  not 
such,  but  a  tax  on  transportation  onlj'. 

The  corporate  franchises,  the  property,  the  business,  the 
income  of  corporations  created  by  a  State  may  undoubtedly  be 
taxed  by  the  State;  but  in  imposing  such  taxes  care  should  be 
taken  not  to  interfere  with  or  hamper,  directly  or  by  indirection, 
interstate  or  foreign  commerce,  or  any  other  matter  exclusively 
within  the  jurisdiction  of  the  Federal  government.  This  is  a 
principle  so  often  announced  by  the  courts,  and  especially  by  this 
court,  that  it  may  be  received  as  an  axiom  of  our  constitutional 
jurisprudence.  It  is  unnecessary,  therefore,  to  review  the  long 
list  of  cases  in  which  the  subject  is  discussed.  .  .  . 

Reversed.  .  .  .* 

1  See  Maine  v.  Grand  Trunk  Ry.  Co.,  142  U.  S.  217  (1891);  Galveston,  H. 
&  S.  A.  Ry.  Co.  t;.  Texas,  210  U.  S.  217,  226  (1908).  —  Ed. 


WESTERN  UNION   TELEGRAPH   CO.   V.   PENDLETON.  1003 

WESTERN  UNION  TELEGRAPH  CO.  v.   PENDLETON. 

Supreme  Court  of  the  United  States.     1887. 

[122  United  States,  347.]  ^ 

Error  to  the  Supreme  Court  of  Indiana. 

In  an  Indiana  court  Pendleton  brought  action  against  the 
telegraph  company  for  a  penalty  of  SlOO  prescribed  by  an  Indiana 
statute  (R.  S.  Ind.  1881,  §4178),  enacting,  among  other  things, 
that  every  electric  telegraph  company,  with  a  line  wholly  or 
partly  in  Indiana,  "shall  deliver  all  despatches,  by  a  messenger, 
to  the  persons  .  .  .  addressed,  .  .  .  Provided,  such  persons  .  .  . 
reside  within  one  mile  of  the  telegraphic  station  or  within  the 
city  or  town  in  which  such  station  is."  Pendleton's  complaint 
alleged  that  he  deposited  the  message  in  question,  prepaid,  at 
the  telegraph  office  in  Shelbyville,  Indiana,  addressed  to  "Rosa 
Pendleton,  care  James  Harker,  near  City  Graveyard,  Ottumwa, 
Iowa,"  and  that  the  company,  after  recei\dng  it  at  Ottumwa, 
failed  to  dehver  it.  The  company  answered  that  the  telegram 
reached  Ottumwa  at  7.30  P.M.,  that  James  Harker  hved  outside 
the  district  in  which  it  delivered  telegrams  by  messenger,  and 
more  than  one  mile  from  the  office,  that,  in  accordance  with  the 
custom  of  the  office,  the  message  was  promptly  placed  in  the  post- 
office,  prepaid,  and  that  it  was  received  by  the  addres.see  the 
following  morning  at  about  nine  o'clock.  The  court  sustained 
a  demurrer  to  the  answer;  and,  the  company  electing  to  stand 
upon  its  answer,  judgment  was  rendered  for  the  plaintiff.  The 
judgment  was  affirmed  Ijy  the^upreme  Court  of  Indiana. 

^4.  L.  Mason,  and  others,  for  plaintiff  in  error;  and  no  appear- 
ance contra. 

Field,  J.,  .  .  .  deUvered  the  opinion  of  the  court. 

In  Telegraph  Co.  v.  Texas,  105  U.  S.  460,  464,  it  was  decided 
.  .  .  that  intercourse  by  the  telegraph  between  the  States  is 
commerce.  .  .  . 

It  differs  in  material  particulars  from  that  portion  of  com- 
merce TNith  foreign  countries  and  between  the  States  which  con- 
sists in  the  carriage  of  persons  and  the  transportation  and  exchange 
of  commodities,  upon  which  we  have  been  so  often  called  to  pass. 
It  differs  not  only  in  the  subjects  which  it  transmits,  but  in  the 
means  of  transmission.    Other  commerce  deals  only  wdth  persons, 

*  An  abbreviated  statement  has  been  presented.  —  Ed. 


1004     commehce:   decisions  since  close  of  civil  wau. 

or  with  visible  Jind  tanpiMo  things.  Hut  the  trlrj^raph  transports 
nothing  visible  and  tanj^ible;  it  carries  only  ideius,  wishes,  orders, 
and  intelligence.  Other  commerce  refjuires  the  constant  atten- 
tion and  supervision  of  the  carrier  for  the  safety  of  the  |x»rsons 
and  property  carried.  The  message  of  the  t<'legraph  passes  at 
once  beyond  the  control  of  the  s^Mider,  and  reaches  the  office  to 
which  it  is  .sent  instantaneously.  It  is  plain,  from  these  essentially 
different  characteristics,  that  the  regulations  suitable  for  one  of 
these  kinds  of  commerce  would  be  entirely  inapplicable  to  the 
other. 

In  the  consideration  of  numerous  cases,  in  which  questions  have 
arisen  relating  to  ordinary  commerce  with  foreign  countries  and 
between  the  States,  this  court  hius  reached  certain  conclusions 
as  to  what  subjects  of  commerce  the  regulation  of  Congress  is 
exclusive,  and  indicated  on  what  subjects  the  States  may  exerci.se 
a  concurrent  authority  until  Congress  intervenes  and  jussumes 
control.  .  .  .  Rut  with  reference  to  the  new  species  of  commerce, 
consisting  of  intercourse  by  telegraphic  messages,  this  court  h:us 
only  in  two  cjises  been  calletl  upon  to  infjuire  into  the  power  of 
Congress  and  of  the  State  over  the  subject.  .  .  .  Pensacola 
Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96  U.  S.  1.  .  .  . 
Telegraph  Company  v.  Texas,  105  U.  S.  4(>0,  .  .  . 

In  the.se  ca.ses  the  supreme  authority  of  Congress  over  the  sub- 
ject of  commerce  by  the  telegraph  with  foreign  countries  or  among 
the  States  is  affirmed,  whenever  that  body  chooses  to  exert  its 
power;  and  it  is  also  held  that  the  States  can  impose  no  impedi- 
ments to  the  freedom  of  that  commerce.  In  conformit}-  with 
these  views  the  attempted  regulation  ])v  Indiana  of  the  mode  in 
which  messages  .sent  bj-  telegraphic  companies  doing  business 
within  her  limits  shall  be  delivered  in  other  States  cannot  be  up- 
held. It  is  an  imix'diment  to  the  freedom  of  thatr  form  of  inter- 
state commerce,  whicii  is  as  much  bej'ond  the  power  of  Indiana 
to  interpose,  as  the  imposition  of  a  tax  by  the  State  of  Texas 
upon  every  message  transmitted  by  a  telegraph  company  within 
her  limits  to  other  States  was  beyond  her  power.  Whatever 
authority  the  State  may  possess  over  the  transmission  and  deliv- 
ery of  messages  by  telegraph  companies  within  her  limits,  it  does 
not  extend  to  the  delivery  of  messages  in  other  States. 

The  object  of  vesting  the  power  to  regulate  comnmmo  in 
Congress  was  to  secure,  with  reference  to  it<  -:ii^jects,  ^ini^fnrm 
regulations,  where  such  uniformity  is  practicable,  against  con- 
flicting   State    legislation.      Such    contiictmg    legislation    would 


WESTERN   UNION   TELEGRAPH   CO.   V.   PENDLETON.  1005 

inevitably  follow  with  reference  to  telegraphic  communica- 
tions between  citizens  of  different  States,  if  each  State  was 
vested  with  power  to  control  them  beyond  its  own  limits.  The 
manner  and  order  of  the  delivery  of  telegrams,  as  well  as  of 
their  transmission,  would  vary  according  to  the  judgment  of 
each  State.  Indiana,  as  seen  by  its  law  given  above,  has  pro- 
vided that  communications  for  or  from  officers  of  justice  shall  take 
precedence,  and  that  arrangements  may  be  made  with  pub- 
lishers of  newspapers  for  the  transmission  of  intelligence  of  gen- 
eral and  puljlic  interest  out  of  its  order;  but  that  all  other  messages 
shall  be  transmitted  in  the  order  in  which  they  are  received ;  and 
punishes  as  an  offence  a  disregard  of  this  rule.  Her  attempt,  by 
poiuil  statutes,  to  enforce  a  delivery  of  such  messages  in  other 
States,  in  conformity  with  this  rule,  could  hardly  fail  to  lead  to 
collision  with  their  statutes.  Other  States  might  well  direct  that 
telegrams  on  many  other  subjects  should  have  precedence  in 
delivery  within  their  limits  over  some  of  these,  such  as  telegrams 
for  the  attendance  of  physicians  and  surgeons  in  case  of  sudden 
sickness  or  accident,  telegrams  calling  for  aid  in  case  of  fire  or 
other  calamity,  and  telegrams  respecting  the  sickness  or  death 
of  relatives. 

Indiana  also  requires  telegrams  to  be  delivered  by  messengers 
to  the  persons  to  whom  they  are  addressed,  if  they  reside  within 
one  mile  of  the  telegraph  station,  or  within  the  city  and  town  in 
which  such  station  is;  and  the  requirement  appHes,  according  to 
the  decision  of  its  Supreme  Court  in  this  case,  when  the  deUvery 
is  to  be  made  in  another  State.  Other  States  might  conclude  that 
the  deUvery  by  messenger  to  a  person  living  in  a  town  or  city  being 
many  miles  in  extent  was  an  unwise  burden,  and  require  the  duty 
within  less  limits;  but  if  the  law  of  one  State  can  prescribe  the 
order  and  manner  of  delivery  in  another  State,  the  receiver  of  the 
message  would  often  find  himself  incurring  a  penalty  because  of 
conflicting  laws,  both  of  which  he  could  not  obey.  Conflict  and 
coiTfiision  would  jjiibiJoJlnw  t.hr  M,ttpnipted  exercise  of  such  a 
fSow^r.    We  are  clearthat  it  does  not  exist  in  anv  State^ 

^e  Supreme  Court  of  Indiana  placed  its  decision  in  support  of 
th^statutFlmiTctpnlt^'  upon  lli^^  ground  ilia  I  it  was  the  exercise 
oflhe  police  power  of  the  State.  Undoubtedly,  under  the  reserve 
powers  ot  the  State,  whi('h  lire  designated  under  that  somewhat 
ambiguous  term  of  poUce  powers,  regulations  may  be  prescribed  by 
the  State  for  the  good  order,  peace,  and  protection  of  the  com- 
munity.   The  subjects  upon  which  the  State  may  act  are  almost 


lO 


1006     commerce:   decisions  since  close  of  civil  war. 

infinite,  yet  in  its  regulations  with  rrspcct  to  all  of  tlnTn  there  is 
tliis  necessary  flmitatioii,  that  the  Sfiitf 'Inv-'  nnt  tljj^iiJh\M_riiTt)a(-h 
upon  the  free  exercise  of  the  power  vested  in  C 'oujjress  hy  tl 
Consiiuiiioil  Witimi  ttiat  limitation  it  may,  undouhtedly,  nuikt 
all  necessary  provisions  with  respe<-t  to  the  l)uildin^;s,  poles,  and 
wires  of  telegraph  companies  in  its  jurisdiction  which  the  comfort 
and  convenience  of  the  community  may  require.  .  .  . 

Reversed.  .  .  .' 


BOWMAN   V.   CHICAGO    AND   NORTHWESTERN   RAIL- 
WAY CO. 

Supreme  Court  of  the  United  States.     1888. 

1125  United  States,  465.1 » 

Error  to  the  Circuit  Court  of  the  United  States  for  the  North- 
ern District  of  Illinois, 

G.  A.  Bowman,  a  citizen  of  Nehra.ska,  and  I'.  W.  Bowman, 
a  citizen  of  Iowa,  partners  in  business  at  Marshalltown,  Iowa, 
brouglit  action  against  the  railway  comi)any,  an  Illinois  cor]iora- 
tion.for  refusing  on  May  20,  1886,  to  receive  from  them  at  Chicago 
5,000  barrels  of  beer  for  shipment  to  them  at  Marslialltown. 
The  plea  was  that  the  Iowa  statute  of  March  .'),  1S8(),  enacted  that 
"If  any  .  .  .  railway  company  .  .  .  knowingly  bring  within 
this  State  for  any  otlier  person  .  .  .  any  intoxicating  liquors 
without  ...  a  certificate  .  .  .  that  the  consignee  ...  is  au- 
thorized to  sell  .  .  .  ,  such  company  .  .  .  shall  .  .  .  be  fined 
.  .  .  $100."  A  detniiLrpr  to  tliis  pica  was  overruled,  and  judg- 
ment  was  entered  against  the  i)laintitTs;     "  * 

L.  J.  hlum  and  anotHer,  lor  plaintiffs  in  error;  and  A.  J. 
Baker,  Attorney  General  of  Iowa,  and  others,  contra. 

Matthews,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

This  statutory  provision  does  not  stand  alone,  and  must  be 
considered  with  reference  to  the  system  of  legislation  of  which  it 
forms  a  part.  .  .  .  The  provision  of  the  statute  set  out  in  the 
plea,  prohibiting  the  transportation  by  a  common  carrier  of  in- 
toxicating Uquor  from  a  point  within  any  other  State  for  delivery 

I  Compare  Western  Union  Telegraph  Co.  v.  James,   162  U.  S.  650  (18%). 
See  Western  Union  Telegraph  Co.f.  Brown,  234  U._S.  542  (1914).  —  Ed. 
*  The  statement  has  been  shortened.  —  Ed. 


BOWMAN  V.    CHICAGO   AND   NORTHWESTERN  RAILWAY   CO.       1007 

at  a  place  within  the  State  of  Iowa,  is  intended  to  more  effectually 
carry  out  the  general  policy  of  the  law  of  that  State  with  respect 
to  the  suppression  of  the  illegal  manufacture  and  sale  of  intoxicat- 
ing Uquor  within  the  State  as  a  nuisance.  It  may,  therefore,  fairly 
be  said  that  the_  provision  in  Question  has  been  adopted  by  the 
State  of  Iowa,  not  expressly  for  the  purpose  of  regulating  com- 
meiTe~~bFtWeernts  citizens  and  tnose  ot  other  bjtates.  but 
subservient  to  the  general  design  of  protecting  the  health  and 
mofahrst  Its  people,  and  the  peace  and  good  order  of  thp  Stntp. 
a^^Sinst  the  physical  and  moral  evils  resulting  from  thp  nnrp- 
stricted  manufacture  and  sale  within  the  State  of  intoxicating 
Kf^uors.  .  .  . 

iri  The  License  Cases,  5  How.  504,  the  question  was  whether 
certain  statutes  of  Massachusetts,  Rhode  Island,  and  Ncav  Hamp- 
shire, relating  to  the  sale  of  spirituous  liquors,  were  repugnant 
to  the  Constitution  of  the  United  States  by  reason  of  an  alleged 
conflict  between  them  and  the  power  of  Congress  to  regulate  com- 
merce with  foreign  countries  and  among  the  several  States.  The 
statutes  of  Massachusetts  and  of  Rhode  Island  considered  in 
those  cases  had  reference  to  the  sale  within  those  States  respec- 
tively of  intoxicating  liquor  imported  from  foreign  countries,  but 
not  sold  or  offered  for  sale  within  the  State  by  the  importer  in 
original  packages.  The  statute  of  New  Hampshire,  however, 
applied  to  intoxicating  liquor  imported  from  another  State,  and  the 
decision  in  that  case  u])held  its  validity  in  reference  to  the  disposi- 
tion by  sale  or  other^vise  of  the  intoxicating  liquor  after  it  had 
been  brought  into  the  State.  That  judgment,  therefore,  closely 
approached  the  question  presented  in  this  case.  The  justices  all 
concurred  in  the  result,  but  there  was  not  a  majority  which  agreed 
upon  any  specific  ground  for  the  conclusion,  and  it  is  necessary 
to  compare  the  several  opinions  which  were  pronounced  in 
order  to  extract  the  propositions  necessarily  embraced  in  the 
jutlgment.  .  .  . 

From  a  review  of  all  the  opinions  the  following  conclusions  are 
to  be  deduced  as  the  result  of  the  judgment  in  those  cases: 

1.  All  the  Justices  concurred  in  the  proposition  that  the 
stat\ites  in  question  were  not  made  void  by  the  mere  existenffi 
of  the  ])ower  to  regulate  commerce  with  foreign  nations  .and 
among  the  States  delegated  to  Congrpss  hy  ihp  £ktpsfitiition. 

2.  They  all  concurred  in"  the  proposition  that  there  was  no 
legislation  by  Congress  in  pursuance  of  that  po^vpr  with  w|iiph" 
these  statutes  were  in  conflict. 


1008     co.MMf^RrK:    decisions  since  close  of  civil  war. 

3.  Sonu',  including  the  Chief  Ju*44eer-hdd  •that_the  mattor  of 

theiinp()fTati()ii  and  sale  of  articles  of  pn|pnu'rp<>  \vn>;  >^Mhjrrt  ^^ 
the  exclusive  rejfulation  of  Congn-ss,  whenever  it  chose  to  exert 
its  power,  atid  ttinjjirvYjitatuteTjf  the  State  on  the  same  subject 
inj^-oiiHict  with  such  positive  provisions  of  law  enacted  by  Congress 
would  be  void. 

4.  Others  maintained  the  view  that  the  power  of  Congress 
to  regiTTale  ^'ollinii'ri'c  dnr  not  extend  to  or  include  the  subject 
oT^flTe"sale  ol  such  articles  Of  rnniriWT('<'  Jlfler  they  had  been 
introduced  into  a  Stat(^,  hiiT  ThAi  when  fTie"  act  ofinn)ortation 
ended,  bvli'^rtrttvTTy  to  the  consignee,  the  exclusive  jkiwit  over 
ttic  subject  belonged  to  the  Statues  as  a  part  of  their  police  power. 

From  this  analysis  it  is  a])])arent  that  the  question  presented 
in  this  cas>-  was  not  decided  in  The  Licinse  ( 'uses.  The  pomt 
in  judgment  in  tlieni  was  stri<'tly  confined  to  the  riglit  of  the  States 
to  prohibit  the  sale  of  intoxicating  liquor  after  it  had  been  brought 
within  their  territorial  limits.  .  .  . 

The  section  of  the  statute  of  Iowa,  the  validity  of  which  is 
dra\\'n  iiT~quT'snon  In  this  case,  does  not  Fall  within  .  .  .  leghi- 
mate  exertions  of  the  ]>oTice  ])ower.  It  is  not  an  exerci.se  of^the 
j urisdiction  of  tlu*  State  over  persons  and  property  within  it s 
limits.  On  the  contrary,  it  is  an  attempt  to  exert  that  jurisdictmn 
over  pcTsons  and  prop^erty  w'^hin  the  limits  of  other  States.  It 
scclcsto  prohibit  and  stop  their  p;issage  and  ini])ortatimniIULJia- 
own  limits,  and  is  designed  as  a  regulation  for  the  conduct  of 
commerce  before  the  merchandi.><e  is  brought  to  its  border.  It  is 
not  one  of  those  local  regulations  designed  to  aid  and  facilitate 
commerce;  it  is  not  an  insi)ection  law  to  secure  the  due  (lualitj' 
and  measure  of  a  commodity;  it  is  not  a  law  to  regulate  or  restrict 
the  sale  of  an  article  deemed  injurious  to  the  health  and  morals 
of  the  community;  it  is  not  a  regulation  confined  to  tlie  i)urely 
internal  and  domestic  commerce  of  the  State;  it  is  not~a  restric- 
tion which  only  o])erates  upon  projierty  after  it  has  become 
mingled  with  and  forms  part  of  the  mass  of  the  pro]x?rty  within 
the  State.  It  is,  on  the  other  hand,  a  regulation  directly  affecting 
interstate  commerce  in  an  es.sential  and  vital  point.  If  authorized, 
in  the  present  instance,  upon  the  grounds  and  motives  of  the  policy 
which  have  dictated  it,  the  same  reason  would  justify  any  and 
every  other  State  regulation  of  interstate  commerce  upon  any 
grounds  and  reasons  which  might  prompt  in  particular  cases  their 
adoption.  It  is,  therefore,  a  regulation  of  that  character  which 
constitutes  an  unauthorized  lT\Terlerence  with  the  power  given 'to 


BOWMAN   V.   CHICAGO   AND   NORTHWESTERN  RAILWAY   CO.       1009 

Congress  over  the  subject.    If  not  in  contravention  of  any  positive 


legi.slation  by  Congress,  it  is  nevertheTess  a  breach  and  interrup- 
tTuii  ul  that  liberty  of  trade  which  C^ongress  ordains  as  the  national 
pohcy,  by  willing  that  it  shall  be  free  from  restrictive  rcgulatfons . 

it  may  be  Kaid,  however,  that  the  right  of  the  State  to  restrict 
or  prohibit  sales  of  intoxicating  liquor  within  its  hmits,  conceded 
to  exist  as  a  part  of  its  police  power,  implies  the  right  to  prohibit 
its  importation,  because  the  latter  is  necessary  to  the  effectual 
exercise  of  the  former.  The  argument  is  that  a  prohibition  of  the 
sale  cannot  be  made  effective,  except  by  preventing  the  introduc- 
tion of  the  subject  of  the  sale;  that  if  its  entrance  into  the  State 
is  permitted,  the  traffic  in  it  cannot  be  suppressed.  But  the  right 
t^_prohiijit  sales,  so  far  as  conceded  to  the  States,  arises  only 
aft«'r  the  act  ot  transportation  iias  tormmaterl,  because  tne  sales 
which  tiic  .Stat<-  HKiv  lorbid  arc  of  things  witluTr  its  ml'ii^drULion. 
Its  power  over  them  docs  not  begin  to  operate  until  thev  are 
l)r()iio-ht__\vithii|  the  tcrrit^frial  ninits  Which  circumscribe  It.  U 
might  be  very  convenient  aiul  useful  in  the  execution  of  the 
policy  of  prohibition  within  the  State  to  extend  the  powers  of 
the  State  beyond  its  territorial  limits.  But  such  extraterritorial 
powers  carmot  be  assumed  upon  such  an  implication.  On  the 
contrary,  the  nature  of  the  case  contradicts  their  existence. 
For  if  they  belong  to  one  State,  they  belong  to  all,  and  cannot  be 
exercised  severally  ami  independently.  The  attempt  would  neces- 
.sarily  produce  that  conflict  and  confu-sion  which  it  was  the  very 
purpose  of  the  Constitution  by  its  delegations  of  national  power 
to  prevent.  .  .  . 

Reversed.  .  .  . 

Field,  J.,  concurring.  .  .  . 

Harlan,  J.,  with  whom  concurred  Waite,  C.  J.,  and  Gray,  J., 
di.s.sentiiig.  .  .  . 

Lamar,  J.,  was  not  present  at  the  argument  of  this  case,  and 
took  no  part  in  its  decision. 


1010     commerce:   decisions  since  close  of  civil  wau. 

LEISY   V.   TIARDIX. 
Supreme  Court  of  the  United  States.     1890. 

[13.5  United  States,  100.]  ' 

Error  to  tho  Supromo  Court  of  Iowa. 

In  tho  Superior  Court  of  Keokuk,  L<Msy  and  others,  eitizon.s  of 
Illinois,  brought  replevin  against  the  city  marshal  for  kegs  of 
beer  and  sealed  ca.ses  of  beer  seized  by  him  under  an  Iowa  statute. 
A  jury  having  be<>n  duly  waived,  the  court  found  that  the  plain- 
tiffs manufactured  beer  at  Peoria,  caused  it  to  be  transported 
in  sealed  kegs  and  cases  to  Iowa,  and  there  made  no  sales  save 
in  the  original  kegs  and  cases.  The  Superior  Court  gave  judg- 
ment  for  pluifitifTs.  on  the  ground  that  the  statute,  ivs  applied 
to  sales  in  original  packages,  was  in  contravention  of  the  com- 
merce clause  of  the  Constitution  of  the  United  States.  A 
motion  for  a  new  trial  was  overruled.  On  appeal,  the  Supreme 
Court  of  Iowa  reversed  Jthe^iujjimiait  antl  entered  jmiya^ 
against  the  plaintiffs  (78  Iowa,  28()). 

J.  C.  Dai'is,  for  plaintiffs  in  error;  and  //.  >'.  Howell  and  others, 
for  defendant  in  error. 

Fuller,  C.  .1.,  .  .  ,  delivered  the  opinion  of  the  court. 

The  power  vested  in  Congress  "to  regulate  commerce  with 
foreign  nations,  and  among  tiie  several  States,  and  with  the 
Indian  tribes,"  is  the  power  to  prescribe  the  rule  by  which  that 
commerce  is  to  be  governed,  and  is  a  power  complete  in  itself, 
acknowledging  no  limitations  other  than  those  prescribed  in  the 
Constitution.  It  is  co-extensive  with  the  subject  on  which  it 
acts  and  cannot  be  stopped  at  the  external  boundar>'  of  a  State, 
but  must  enter  its  interior  and  must  be  capable  of  authorizing 
the  disposition  of  those  articles  which  it  introduces,  so  that  they 
may  become  mingled  with  the  common  miiss  of  property  within 
the  territory  entered.  Gibbons  v.  Ogden,  9  Wheat.  1;  Brown  v. 
Maryland,  12  Wheat.  419. 

And  while,  by  virtue  of  its  jurisdiction  over  persons  and  prop- 
erty within  its  limits,  a  State  may  provide  for  the  security  of  the 
lives,  limbs,  health  and  comfort  of  persons  and  the  protection  of 
property  so  situated,  yet  a  subject-matter  which  has  been  con- 
fided exclusively  to  Congress  by  the  Constitution  is  not  within 
the  jurisdiction  of  the  police  power  of  the  State,  unless  placed 

*  The  statement  has  been  shortened.  —  Ed. 


LEISY  V.  HARDIN.  1011 

there  by  congressional  action.  Henderson  v.  Mayor  of  New 
York,  92  U.  S.  259;  Railroad  Co.  v.  Husen,  95  U.  S.  465;  Walling 
r.  Michigan,  116  U.  S.  466;  Robbins  v.  Shelby  Taxing  District, 
120  U.  S.  489.  .  .  .  Where  the  snbieft-matter  p.qnires  a  ^^rjifnrm 
systemas  beijiieeiLt!  ,  tht    iiowcr  controlling  it  is  vested 

exclusively  in  Congii —.  ..;  .  f.ninot  lie  encroached  upon  by^tjie 
States;  ImiI  wlu-re,  in  relation  t(j  the  suhjcct-matter,  different 
rules  may  In-  suitaMr  for  different  localities,  the  States  may 
exercise  po\ver<  which,  tliough  they  may  l)e  said  to  partake  of 
the  nature  of  the  i)()\vcr  granted  to  the  general  government,  are 
strictly  not  such,  Imt  ai-c  >ini!)l\-  local  {)o\vers.  whicli  have  full 
operation  until  or  unle?..s  circuni-cribed  hy  the  action  of  Congress 
in  effectuation  of  the  general  power.  Cooley  v.  Board  oTWardens 
of  Philadelphia,  12  How.  299. 

It  was  stated  in  the  32d  number  of  the  Federalist  that  the 
States  might  exercise  concurrent  and  independent  power  in  all 
cases  but  three:  First,  where  the  power  was  lodged  exclusively  in 
the  Federal  Constitution;  second,  where  it  was  given  to  the  United 
States  and  prohibited  to  the  States;  third,  where,  from  the  nature 
and  subjects  of  the  power,  it  must  be  necessarily  exercised  by  the 
National  government  exclusively.  But  it  is  easy  to  see  that  Con- 
gres.s  may  assert  an  authority  under  one  of  the  granted  powers, 
which  would  exclude  the  exercise  by  the  States  upon  the  same 
subject  of  a  different  but  similar  power,  between  which  and  that 
possessed  by  the  general  government  no  inherent  repugnancy 

existed. 

Whenever,  however,  a  particular  power  of  the  general  govern- 
ment is  one  which  must  necessarily  be  exercised  by  it,  and  Con- 
gress remains  silent,  this  is  not  only  not  a  concession  that  the 
powers  reserved  by  the  States  may  be  exerted  as  if  the  specific 
power  had  not  been  elsewhere  reposed,  but,  on  the  contrary,  the 
only  legitimate  conclusion  is  that  the  general  government  in- 
tended that  power  should  not  be  affirmatively  exercised,  and  the 
action  of  the  States  cannot  be  permitted  to  effect  that  which 
would  be  incompatible  with  such  intention.  Hence,  inasmuch^s 
interst^itejommercejconsistin^  jp.  tha  tmnsportation,  purchase, 
salT'anH^change  oTcommodities.  is  national  in  its  character, 
and  rmSTrgoverned  bv  n  limform  Rvstem.  so  long  ag  Congress 
does  not  pass  any  law  to_regula.t£ it,  or  allowing  the  States^?  tP 
do,  it  thereby  indicates  Tte  will^ihat  such  commerce  shall  be  free 
and  untrammeled.  County  of  Mobile  v.  Kimball,  102  U.  S.  691; 
Brown  r.  H^ton,  114  U.  S.  622,  631;  Wabash,  St.  Louis  &c. 


1012     commerce:    decisions  since  close  ok  civil  wah. 

Uuilvvay  v.  Illinois,  118  U.  S.  557;  Uol)i)iiis  r.  Shelby  Taxing  Dis- 
trict, 120  U.  S.  48'.),  403. 

That  anient  spirit.s,  distilled  liciuors,  ale  and  heer  are  subjects 
of  exchanRe,  barter  and  traffic,  like  any  other  commodity  in  which 
a  rifiht  of  traffic  exists,  and  are  so  recognized  by  the  usages  of  the 
commercial  world,  the  laws  of  Congre.ss  and  the  decisions  of 
courts,  is  not  denied.  Being  thus  articles  of  commerce,  can  a 
State,  in  the  absence  of  legislation  on  the  part  of  Congress,  pro- 
hibit their  importation  from  abroa<l  or  from  a  sister  State?  or 
when  imiK)rted  prohii)it  their  sale  by  the  importer?  If  the  im- 
portation cannot  be  proiui)ited  without  the  con.sent  of  Congress, 
when  does  property  imported  from  abroad,  or  from  a  sister  State, 
.so  become  part  of  the  common  ma.ss  of  property  within  a  State 
as  to  be  subject  to  its  unimpeded  control?  .  ,  . 

As  the  grant  of  the  power  to  regulate  commerce  among  the 
States,  so  far  as  one  system  is  nciuired,  is  exclusive,  tin-  States 
cannot  exercise  that  power  without  the  a.ssent  of  Congress,  .iiid, 
in  tiie  al)sence  of  legislatit)n.  it  is  left  for  the  courts  to  determine 
wlien  State  action  does  t)r  (hx's  not  amount  to  such  exercise,  or, 
in  other  words,  what  is  or  is  not  a  regulation  of  such  com- 
merce. Wiien  that  is  determined,  controversy  is  at  an  end. 
Illustiatioiis  exemplifying  the  general  rule  are  numerous.  Thus 
we  ha\('  held  the  following  to  be  regulations  of  interstate  com- 
merce: A  tax  upon  freight  transport e<l  from  State  to  State.  Ca.se 
of  the  State  Freight  Tax,  15  Wall.  '2'.V2\  a  statute  imposing  a  l)ur- 
densome  condition  on  ship-masters  as  a  j)rere(iuisite  to  the  land- 
ing of  p;issengers.  Henderson  r.  Mayor  of  New  York,  92  U.  S. 
259;  a  statute  prohil)iting  the  driving  or  conveying  of  any  Texas, 
Mexican  or  Indian  cattle,  whether  .>^ound  or  diseased,  into  the 
State  between  the  first  day  of  March  and  the  first  day  of  Novem- 
ber in  each  year.  Railroad  Co.  r.  Hu.sen,  95  U.  S.  465;  a  statute 
requiring  every  auctioneer  to  collect  and  pay  into  the  State  treiis- 
ury  a  tax  on  his  sales,  when  applied  to  imported  goods  in  the 
original  packages  by  him  sold  for  the  importer.  Cook  v.  Pennsyl- 
vania, 97  U.  S.  566;  a  statute  intended  to  regulate  or  tax,  or  to 
impose  any  other  restriction  upon,  the  transmission  of  persons 
or  property,  or  telegraphic  messages,  from  one  State  to  another, 
Wabash,  St.  Louis  &c.  Railway  r.  Illinois,  118  U.  S.  557;  a  statute 
levying  a  tax  upon  non-resident  drummers  offering  for  sale  or 
selling  goods,  wares  or  merchandise  by  sample,  manufactured  or 
belonging  to  citizens  of  other  States,  Robbins  v.  Shelby  Taxing 
District,  120  U.  S.  489. 


LEISY   V.   HARDIN.  1013 

(Jn  the  other  hand,  we  have  decided,  in  County  of  Mobile  v. 
Kimball,  102  U.  S.  691,  that  a  State  statute  providing  for  the 
improvement  of  the  river,  bay  and  harbor  of  Mobile,  since  what 
was  authorized  to  be  done  was  only  as  a  mere  aid  to  commerce, 
was,  in  the  absence  of  action  by  Congress,  not  in  conflict  with' 
the  Constitution;  in  Escanaba  Co.  v.  Chicago,  107  U.  S.  678, 
that  the  State  of  Illinois  could  lawfully  authorize  the  city  of 
Chicago  to  deepen,  widen  and  change  the  channel  of,  and  con- 
struct bridges  over,  the  Chicago  River;  in  Transportation  Co.  v. 
Parkersburg,  107  U.  S.  691,  that  the  jurisdiction  and  control  of 
wharves  properly  belong  to  the  States  in  which  they  are  situated 
unless  otherwise  provided;  in  Brown  v.  Houston,  114  U.  S.  622, 
that  a  general  State  tax  laid  aUke  upon  all  property  is  not  uncon- 
stitutional, because  it  happens  to  fall  upon  goods  which,  though 
not  then  intended  for  exportation,  are  subsequently  exported; 
in  Morgan  Steamship  Co.  v.  Louisiana  Board  of  Health,  118 
U.  S.  455,  that  a  State  law,  requiring  each  vessel  passing  a  quar- 
antine station  to  pay  a  fee  for  examination  as  to  her  sanitary 
condition  and  tlie  ports  from  which  she  came,  was  a  rightful  exer- 
ci.se  of  police  power;  in  Smith  v.  Alabama,  124  U.  S.  465,  and  in 
Nashville  &c.  Railway  Co.  v.  Alabama,  128  U.  S.  96,  that  a  State 
statute  requiring  locomotive  engineers  to  be  examined  and  obtain 
a  license  was  not  in  its  nature  a  regulation  of  commerce;  and  in 
Kimmish  v.  Ball,  129  U.  S.  217,  that  a  statute,  providing  that  a 
person  having  in  his  possession  Texas  cattle,  which  had  not  been 
wintered  north  of  the  southern  boundary  of  Missouri  at  least  one 
winter,  shall  be  lial)le  for  any  damages  which  may  accrue  from 
allowing  them  to  run  at  large,  and  thereby  spread  the  disease 
known  lus  the  Texas  fever,  was  constitutional.  .  .  . 

These  decisions  rest  upon  the  undoul)tcd  right  of  the^gtates 
of  the  Union  to  control  their  purely  internal  attairs.  indoing 
whTcTTthey  exercise  powers  not  surrendered  ^ojhe  National  gov- 
ernJTient;  but  whenever  the  law  ot  the  State  amounts  essentially 
to  a  regulation  of  commerce  with  foreign  nations  or  among  the 
States,  as  it  does  when  it  inhibits,  directly  or  indirectly,  the  re- 
ceipt of  an  Imported  commodity  or  its  dispositinn  before  it  has 
ceiused  to  become  an  article  ofjrade  between  one  State  an^n- 
otheL  or  another  countr>^  and  this,  it  comes  in  conflict  with  a 
power  which,  in  this  particular,  hasjjeen  exclusively  Y,£al£trm 
the  general  g5VCT!!meht,  and  is  therefore  void.  .  .  . 

PrTofloT888  the  statutes  of  Iowa  permitted  the  sale  of  foreign 
liquors  .  .  .,  provided  the  sale  was  by  the  importer  in  the  original 


1014     commerce:   decisions  since  close  of  civil  war. 

casks  or  j)aek}iges.  .  .  .  Hut  that  provision  .  .  .  was  ropoalod, 
and  the  law  so  far  amended  that  .  .  .  now  .  .  .  whether  im- 
porter or  not,  wine  cannot  be  sold  in  Iowa  except  for  sacramental 
purposes,  nor  alcohol  except  for  specified  chemical  purixjses,  nor 
intoxicating  licjuors,  including  ale  and  beer,  except  for  pharma- 
ceutical and  medicinal  purposes,  and  not  at  all  except  by  citizens 
of  the  State  of  Iowa,  who  are  registereil  pharmacists  and  have 
permits  obtained  as  prescribed  by  the  statute,  a  permit  being 
also  grantable  to  one  discreet  person  in  any  township  where  a 
piiarrnacist  <loes  not  ol)tain  it. 

The  plaintilTs  in  error  are  citizens  of  Illinois,  are  not  pharma- 
cists, and  have  no  permit,  l)ut  import  into  Iowa  beer,  which  they 
sell  in  original  packages,  as  ilescribed.  I'lider  our  decision  in 
Bowman  v.  Chicago  &e.  Railway  Co.,  snpm,  thg^yjiad  the  right 
to  import^this  beer  into  tluit  State,  and  ill  the  vh'w  which  we 
have  expresscHJ  they  had  the  right  to  sell  it,  by  which  .act  ^10."^ 
it  would  becontieniingled  in  the  common  mass  of  pro])erty  within 
the  State.  Up  to  that  point  of  time,  we  hold  th.at  in  the~ar).sencc 
of  con[>jX'ssionar  pc'rniission  to  do  .so,  the  State  had  no  {Mjwer  to 
intimiiax'  by  seizure,  or  any  other ^tion,  in  prohibition  of  ini|)orta- 
tion  and  .sale  T)y  TIieTofeign  or  non-resTdent  importcT.  Whatever 
our  individual  views  may  be  im  to'  tTie  deleterious" or  dangerous 
qualities  of  particular  articles,  we  cannot  liold  that  any  articles 
which  Congress  recognizes  as  subjects  of  interstate  commerce 
are  not  such,  or  that  whatever  are  thus  recognized  can  be  eon- 
trolled  by  State  laws  amounting  to  regulations,  while  they  retain 
that  character;  although,  at  the  same  time,  if  directly  dangerous 
in  themselves,  the  State  may  take  appropriate  measures  to 
guard  against  injury  before  it  obtains  complete  jurisdiction  over 
them.  To  concede  to  a  State  the  power  to  exclude,  directly  or 
indirectly,  articles  so  situated,  without  congressional  perrni.ssion, 
is  to  concede  to  a  majority  of  the  people  of  a  State,  represented 
in  the  State  legislature,  the  power  to  regulate  commercial  inter- 
course betw'een  the  States,  l\v  determining  what  shall  be  its  sub- 
jects, when  that  power  was  tlistinctly  granted  to  be  exercised  by 
the  people  of  the  United  States,  represented  in  Congress,  and  its 
possession  by  the  latter  was  considered  essential  to  that  more 
perfect  Union  which  the  Constitution  w'as  adopted  to  create.  .  .  . 

The  judgment  of  the  Supreme  Court  of  Iowa_is 

Reversed.  .  .  . 

Gray,  J.,  with  whom  concurred  Harlan  and  Brewer,  JJ., 
dissenting.  .  .  . 


In  re  rahrer,  petitioner.  1015 

In  re  RAHRER,  Petitioner. 
Supreme  Court  of  the  United  States.     1891. 

[140  United  States,  545.]  i 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  Kansas,  to  which  court  Rahrer  apphed  for  a  writ  of 
habeas  corpus. 

In  petitioning  for  the  writ  Rahrer  alleged  that  he  was  restrained 
of  his  liberty  by  the  sheriff  of  Sha^\Tiee  County,  Kansas,  in  viola- 
tion of  the  Constitution  of  the  United  States.  The  cause  was 
heard  under  an  agreed  statement  showing  that  Rahrer  was  agent 
at  Topeka  of  a  firm  composed  of  citizens  of  iVIissouri  and  engaged  in 
the  wholesale  licjuor  business  at  Kansas  City  in  that  State,  that 
in  July,  1890,  the  firm  shipped  from  Missouri  to  their  agent  Rahrer, 
in  Kansas,  a  car-load  of  intoxicating  liquors,  that  on  Aug.  9  Rahrer 
as  agent  of  the  firm  sold  at  Topeka  in  the  original  packages  one 
keg  of  beer  and  one  pint  bottle  of  whiskey,  each  of  which  had  been 
separate  from  every  other  package  in  the  car,  and  that  for  making 
those  sales  the  sheriff,  under  a  warrant  issued  pursuant  to  the 
prohibitor\'  law  of  Kansas  (Gen.  Stat.  sec.  2543),  arrested  Rahrer 
and  still  held  him  in  custody.  An  act  of  Congress  of  Aug.  8,  1890, 
commonly  called  the  Wilson  act,  provided  that  "intoxicating 
li(luors  .  .  .  transported  into  any  State  or  Territory  or  remaining 
therein  .  .  .  shall  upon  arrival  ...  be  subject  to  the  operation 
.  .  .  of  the  laws  of  such  State  or  Territory  enacted  in  the  exercise 
of  its  police  power,  ...  in  the  same  manner  as  though  .  .  . 
produced  in  such  State  or  Territory,  and  shall  not  be  exempt 
therefrom  by  reason  of  being  introduced  therein  in  original  pack- 
ages or  otherwise  "  (26  Stat.  313).  The  court  discharged  the 
petitioner.    (43  Fed.  556.) 

A.  L.  Williams,  and  others,  for  the  sheriff;  and  L.  J.  Blum  and 
others,  contra. 

Fuller,  C.  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Unquestionably,  fermented,  distilled,  or  other  intoxicating 
liquors  or  liquids  are  subjects  of  commercial  intercourse,  exchange, 
barter,  and  traffic,  between  nation  and  nation,  and  between  State 
and  State,  like  any  other  commodity  in  which  a  right  of  traffic 
exists,  and  are  so  recognized  by  the  usages  of  the  commercial 
world,  the  laws  of  Congress,  and  the  decisions  of  courts.    Never- 

1  The  statement  has  been  shortened.  —  Ed. 


1016     commerce:    decisions  since  close  of  civil  war. 

theless,  it  has  boon  often  licld  that  State  logislatittii  which  jjpo- 
hibits  the  inanufactiire  of  spirituous,  malt,  vinous,  fenneiited,  or 
other  intoxicating  liciuors  within  the  Hmits  of  a  State,  to  be  there 
sold  or  bartered  for  general  use  as  a  beverage,  does  not  necessarily 
infringe  any  right,  privilege,  or  immunity  secured  by  the  Constitu- 
tion of  the  United  States  or  l)y  the  amendments  thereto.  Mugler 
r.  Kansas,  123  U.  S.  623,  and  cases  cited.  .  .  . 

The  laws  of  Iowa  under  consideration  in  Howman  v.  Railway 
Company,  125  U.  S.  465,  and  Leisy  v.  Hardin,  135  U.  S.  100,  were 
enacted  in  the  exerci.se  of  the  police  power  of  the  State,  and  not 
at  all  as  regulations  of  commerce  with  foreign  nations  and  among 
the  States,  but  as  they  inhibited  the  receipt  of  an  imported  com- 
modity, or  its  disposition  before  it  had  cea.sed  to  become  an  article 
of  trade  between  one  State  and  another,  or  another  country  and 
this,  they  amounted  in  efTect  to  a  regulation  of  such  commerce. 
Hence,  it  was  held  that  inasunich  tis  interstate  commerce,  con- 
sisting in  the  transportation,  purchase,  sale,  and  exchange  of  com- 
modities, is  national  in  its  character  and  must  be  governed  by  a 
uniform  s^'stem,  .so  long  as  Congress  did  not  pa.ss  any  law  to  regu- 
late it  specifically,  or  in  such  way  as  to  allow  the  laws  of  the  State 
to  operate  upon  it.  Congress  thereby  indicated  its  will  that  such 
commerce  should  be  free  and  untrammeled,  and  therefore  that 
the  laws  of  Iowa,  referred  to,  were  inoperative,  in  so  far  as  they 
amounted  to  regulations  of  foreigfi  or  interstate  commerce,  in 
inhibiting  the  reception  of  such  articles  within  the  State,  or  their 
sale  upon  arrival,  in  the  form  in  which  they  were  imported  there 
from  a  foreign  country  or  another  State.  It  followed  as  a  corol- 
lary, that  when  Congress  acted  at  all,  the  result  of  its  action  must 
be  to  operate  as  a  restraint  upon  that  perfect  freedom  which  its 
silence  insured. 

Congress  has  now  spoken,  and  declared  that  imported  liquors 
or  Uquids  shall,  upon  arrival  in  a  State,  fall  within  the  category 
of  domestic  articles  of  a  similar  nature.  Is  the  law  open  to  con- 
stitutional objection? 

By  the  first  clause  of  section  10  of  Article  I  of  the  Constitution, 
certain  powers  are  enumerated  which  the  States  are  forbidden  to 
exercise  in  any  event;  and  by  clauses  two  and  three,  certain 
others,  which  may  be  exercised  with  the  consent  of  Congress. 
As  to  those  in  the  first  class,  Congress  cannot  relieve  from  the 
positive  restriction  imposed.  As  to  those  in  the  second,  their 
exercise  may  be  authorized;  and  they  include  the  collection  of 
the  revenue  from  imposts  and  duties  on  imports  and  exports,  by 


In  re  rahrer,  petitioner.  1017 

State  enactments,  subject  to  the  revision  and  control  of  Congress; 
and  a  tonnage  duty,  to  the  exaction  of  which  only  the  consent  of 
Congress  is  required.  Beyond  this,  Congress  is  not  empowered 
to  enable  the  State  to  go  in  this  direction.  Nor  can  Congress 
transfer  legislative  powers  to  a  State  nor  sanction  a  State  law  in 
violation  of  the  Constitution;  and  if  it  can  adopt  a  State  law  as 
its  o\\Ti,  it  must  be  one  that  it  would  be  competent  for  it  to  enact 
itself,  and  not  a  law  passed  in  the  exercise  of  the  police  power. 
Cooley  V.  Port  Wardens  of  Philadelphia,  12  How.  299;  Gunn  v. 
Barry,  15  Wall.  610,  623;  United  States  v.  Dewitt,  9  Wall.  41. 

It  does  not  admit  of  argument  that  Congress  can  neither  dele- 
gate its  own  powers  nor  enlarge  those  of  a  State.  This  being  so, 
it  is  urged  that  the  act  of  Congress  cannot  be  sustained  as  a  regu- 
lation of  commerce,  because  the  Constitution,  in  the  matter  of 
interstate  commerce,  operates  ex  propria  vigore  as  a  restraint  upon 
the  power  of  Congress  to  so  regulate  it  as  to  bring  any  of  its  sub- 
jects within  the  grasp  of  the  police  power  of  the  State.  In  other 
words,  it  is  earnestly  contended  that  the  Constitution  guarantees 
freedom  of  commerce  among  the  States  in  all  things,  and  that  not 
only  may  intoxicating  liquors  be  imported  from  one  State  into 
another,  without  being  subject  to  regulation  under  the  laws  of  the 
latter,  but  that  Congress  is  powerless  to  obviate  that  result. 

Thus  the  grant  to  the  general  government  of  a  power  designed 
to  prevent  embarrassing  restrictions  upon  interstate  commerce 
by  any  State,  would  be  made  to  forbid  any  restraint  whatever. 
We  do  not  concur  in  this  view.    In  surrendering  their  owti  power 
over  external  commerce  the  States  did  not  secure  absolute  free- 
dom in  such  commerce,  but  only  the  protection  from  encroach- 
ment afforded  bv  confiding  its  regulation  exclusively  to  Congress. 
By  the  adoption  of  the  Constitution  the  ability  of  the  several 
States  to  act  upon  the  matter  solely  in  accordance  with  their  own 
vN-iU  was  extinguished,  and  the  legislative  will  of  the  general  gov- 
ernment substituted.    No  affirmative  guaranty  was  thereby  given 
to  any  State  of  the  right  to  demand  as  between  it  and  the  others 
what   it  could  not  have  obtained  before;  while  the  object  was 
undoubtedly  sought  to  be  attained  of  preventing  commercial  regu- 
lations partial  in  their  character  or  contrary  to  the  common  mter- 
ests.    And  the  magnificent  growth  and  prosperity  of  the  country 
attest  the  success  which  has  attended  the  acomplishment  of  that 
object.     But  this  furnishes  no  support  to  the  position  that  Con- 
gress could  not,  in  the  exercise  of  the  discretion  reposed  in  it,  con- 
cluding that  the  common  interests  did  not  require  entire  freedom 


1018     commeuck:    decisions  since  close  of  civil  wau. 

in  the  traffic  in  anient  spirits,  enact  the  law  in  question.  In  so 
doing  Congress  has  not  atternptcil  to  drk'gate  the  power  to  regu- 
late commerce,  or  to  exercise  any  jxiwer  reserved  to  the  States,  or 
to  grant  a  power  not  possessed  by  the  States,  or  to  atlopt  State 
laws.  It  has  taken  its  own  course  and  made  its  own  regulation, 
applying  to  these  subjects  of  interstate  commerce  one  common 
rule,  whose  uniformity  is  not  affected  by  variations  in  State  laws 
in  dealing  with  such  projx'rty. 

The  j)rinci|)le  up<jn  which  local  option  laws,  so  called,  have  l>een 
sustained  is,  that  while  the  legislature  cannot  (h'legate  its  ix)wer  to 
make  a  law,  it  can  make  a  law  which  leaves  it  to  municipalities 
or  the  people  to  ch-termine  some  fact  or  state  of  things,  upon 
which  the  action  of  the  law  may  deiH'tul;  but  we  do  not  rest  the 
validity  of  the  act  of  Congress  on  this  analog\'.  The  power  over 
interstat<>  commerce  is  t^x)  vital  to  the  integrity  of  the  nation  to 
be  qualified  by  aii}'  refinement  of  n>a.soning.  The  iK)wer  to  regu- 
late is  solely  in  the  general  government,  and  it  is  an  essential  part 
of  that  regulation  to  prescribe  th«'  regular  means  for  accomplish- 
ing the  introduction  and  incorj)oration  of  articles  into  and  with 
the  mass  of  property  in  the  country  or  State.     12  Wheat.  448. 

No  rea.son  is  jXTceived  why,  if  Congress  ch(K)ses  to  provide  that 
certain  designated  sul)jects  of  interstate  commerce  shall  be  gov- 
erned by  a  rule  which  divests  them  of  that  character  at  an  earlier 
period  of  time  than  would  otherwise  Ix*  the  ca.se,  it  is  not  witiiiii 
its  competency  to  do  so. 

Tlie  dilTerences  of  opinion  which  have  existed  in  this  tribunal 
in  many  leading  cases  upon  this  subject,  have  arisen,  not  from  a 
denial  of  the  jxjwer  of  Congress,  when  exercised,  but  upon  the 
question  whether  the  inaction  of  Congress  was  i:i  itself  equivalent 
to  the  affirmative  interposition  of  a  bar  to  the  operation  of  an 
undisputed  iK)wer  ]X)ssessed  l)y  the  States. 

We  recall  no  tlecision  giving  color  to  the  idea  that  when  Con- 
gress acted  its  action  would  be  less  potent  than  when  it  kept  silent. 

The  framers  of  the  Constitution  never  intended  that  tlie  legis- 
lative power  of  the  nation  should  find  itself  incai)ai)le  of  disixjsing 
of  a  subject-matter  specifically  committed  to  its  charge.  The 
manner  of  that  disposition  brought  into  determination  upon  this 
record  involves  no  ground  for  adjudging  the  act  of  Congress  in- 
operative and  void. 

Wc  inquire  then  whether  fermented,  distilled,  or  other  intoxi- 
cating liquors  or  liquids  transported  into  the  State  of  Kansas, 
and  there  offered  for  sale  and  sold,  after  the  passage  of  the  act, 


In  re  rahrer,  petitioner.  1019 

became  subject  to  the  operation  and  effect  of  the  existing  laws  of 
that  State  in  reference  to  such  articles.  It  is  said  that  this  cannot 
be  so,  because,  b}^  the  decision  in  Leisy  v.  Hardin,  similar  State 
laws  were  held  unconstitutional,  in  so  far  as  they  prohibited  the 
sale  of  liquors  by  the  importer  in  the  condition  in  which  they  had 
been  imported.  .  .  .  The  decision  did  not  annul  the  law,  but 
limited  its  operation  to  property  strictly  within  the  jurisdiction 
of  the  State.  .  .  . 

In  the  case  at  bar,  petitioner  was  arrested  by  the  State  authori- 
ties for  selling  imported  Uquor  on  the  9th  of  August,  1890,  con- 
trary- to  the  laws  of  the  State.  The  act  of  Congress  had  gone  into 
effect  on  the  8th  of  August,  1890,  providing  that  imported  liquors 
should  be  subject  to  the  operation  and  effect  of  the  State  laws  to 
the  same  extent  and  in  the  same  manner  as  though  the  liquors 
had  been  produced  in  the  State;  and  the  law  of  Kansas  forbade 
the  sale.  Petitioner  was  thereby  prevented  from  claiming  the 
right  to  proceed  in  defiance  of  the  law  of  the  State,  upon  the 
implication  arising  from  the  want  of  action  on  the  part  of  Congress 
up  to  that  time.  The  laws  of  the  State  had  been  passed  in  the 
exercise  of  its  police  powers,  and  applied  to  the  sale  of  all  intoxicat- 
ing liquors  whether  imported  or  not,  there  being  no  exception  as 
to  those  imported,  and  no  inference  arising,  in  view  of  the  pro- 
visions of  the  State  constitution  and  the  terms  of  the  law  (within 
whose  mischief  all  intoxicating  liquors  came),  that  the  State  did 
not  intend  imported  liquors  to  be  included.  .  .  . 

Congress  did  not  use  terms  of  permission  to  the  State  to  act, 
but  simply  removed  an  impediment  to  the  enforcement  of  the 
State  laws  in  respect  to  imported  packages  in  their  original  con- 
dition, created  by  the  absence  of  a  specific  utterance  on  its  part. 
It  imparted  no  power  to  the  State  not  then  possessed,  but  al- 
lowed imported  property  to  fall  at  once  upon  arrival  within  the 
local  jurisdiction. 

It  appears  from  the  agreed  statement  of  facts  that  this  liquor 
arrived  in  Kansas  prior  to  the  passage  of  the  act  of  Congress,  but 
no  question  is  presented  here  as  to  the  right  of  the  importer  in 
reference  to  the  withdrawal  of  the  property  from  the  State,  nor 
can  we  perceive  that  the  congressional  enactment  is  given  a 
retrospective  operation  by  holding  it  applicable  to  a  transaction 
of  sale  occurring  after  it  took  effect.  This  is  not  the  case  of  a  law 
enacted  in  the  unauthorized  exercise  of  a  power  exclusively  con- 
fided to  Congress,  but  of  a  law  which  it  was  competent  for  the 
State  to  pass,  but  which  could  not  operate  upon  articles  occupy- 


1020     commkhce:    decisions  since  close  of  civil  war. 

iiiK  a  ccrtuiii  situation  until  the  passaKc  of  tlu*  act  of  Congress. 
That  act  in  terms  removed  the  obstacle,  and  we  p<'rceive  no  ade- 
quate ground  for  adjudging  that  a  rcH-nactmcnt  of  tin-  Stato  law 
wa.s  recjuired  before  it  could  have  the  cfTcct  upon  inijiorted  which 
it  had  always  had  upon  domestic  property. 

Jurisdiction  attached,  not  in  virtue  of  the  law  of  Congress,  hut 
because  the  efTect  of  the  latter  w:us  to  place  the  property  where 
jurisdiction  could  attach. 

Thr  (l(<T(c  i.s  rrirrsrd.   .   .   .' 

Harlan,  Gray,  and  Hrewkic,  JJ.,  concurretl  in  tlie  judgment 
of  reversal,  but  not  in  all  the  reasoning  of  the  opinion  of  the  court. 


PULLMAN'S  PALACE  CAR  CO.   v.   PENNSYLVANIA. 
Supreme  Court  of  the  United  States.     189L 

[in  Inited  States,  18.) » 

Error  to  the  Supreme  Court  of  Permsylvania. 

In  the  Court  of  Common  Pleas  of  Dauphin  County,  action 
was  brought  against  the  company,  an  Illinois  corporation,  to 
recover  a  tax  on  capital  stock.  The  statutes  of  Pennsylvania 
imposed  taxes  on  capital  stock  of  companies,  doing  business  in 
Pennsylvania,  whether  incorporated  there  or  elsewhere,  com- 
puted on  tliviilends  made  or  declared  (Laws.  18G8,  109;  1874,  70; 
1877,  8;  1870,  114).  A  jury  was  waived.  An  agreed  statement 
was  to  the  efTect  that  the  company  had  done  business  in  Penn.syl- 
vania  since  1870,  that  it  furnished  sleeping  coaches  and  other 
cars  to  railway  companies,  no  charge  being  made  by  either  party, 
that  the  company  collected  its  own  separate  charges  from  pas- 
sengers, and  tliat  in  Pennsylvania  it  had  about  100  cars  in  serv- 
ice. The  court  held  that  "the  proportion  of  the  capital  stock 
.  .  .  invested  and  used  in  Pennsylvania  is  taxable  under  these 
acts;   and   that   the  .  .  .  tax  may  be   properly   ascertained   by 

1  See  Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  17  (1905);  Foppiano  v. 
Speed,  199  U.  S.  501  (1905);  Heyman  t-.  Southern  Ry.  Co.,  203  U.  S.  270 
(1906);   Delamater  i'.  South  Dakota,  205  U.  S.  93  (1907).  —  Ed. 

^  -The  statement  has  been  shortened.  —  Ed. 


PULLMAN  S  PALACE  CAR  CO.  V.   PENNSYLVANIA.      1021 

taking  .  .  .  the  proportion  which  the  number  of  miles  operated 
...  in  this  State  bears  to  the  whole  number  of  miles  operated 
by  il,  without  regard  to  the  question  where  any  particular  car  or 
cars  were  used,"  and  gave  judgment  accordingly.  On  writ  of 
error  the  judgment  was  affirmed  by  the  Supreme  Court  of  the 
State  (107  Pa.  St.  15G,  160). 

E.  S.  I  sham,  and  others,  for  plaintiff  in  error;  and  W.  S.  Kirk- 
patrick,  Attorney  General  of  Pennsylvania,  and  another,  contra. 

Gray,  J.,  .  .  .  delivered  the  opinion  of  the  court. 

Upon  this  writ  of  error,  whether  this  tax  was  in  accordance 
with  the  law  of  Pennsylvania  is  a  question  on  which  the  decision 
of  the  highest  court  of  the  State  is  conclusive.  The  only  question 
of  which  this  court  has  jurisdiction  is  whether  the  tax  was  in 
violation  of  the  clause  of  the  Constitution  of  the  United  States 
granting  to  Congress  the  power  to  regulate  commerce  among  the 
several  States.  The  plaintiff  in  error  contends  that  its  cars 
could  be  taxed  only  in  the  State  of  Illinois,  in  which  it  was  incor- 
porated and  had  its  principal  place  of  business. 

No  general  principles  of  law  are  better  settled,  or  more  funda- 
mental, than  that  the  legislative  power  of  every  State  extends  to 
all  property  within  its  borders,  and  that  only  so  far  as  the  comity 
of  that  State  allows  can  such  property  be  affected  by  the  law  of 
any  other  State.  The  old  rule,  expressed  in  the  maxim  mobilia 
sequuntur  personam,  by  which  personal  property  was  regarded  as 
subject  to  the  law  of  the  owner's  domicil,  grew  up  in  the  Middle 
Ages,  when  movable  property  consisted  chiefly  of  gold  and  jewels, 
which  could  be  eiusily  carried  by  the  owner  from  place  to  place, 
or  secreted  in  spots  known  only  to  himself.  In  modern  times, 
since  the  great  increase  in  amount  and  variety  of  personal  prop- 
erty, not  immediately  connected  with  the  person  of  the  owner, 
that  rule  has  yielded  more  and  more  to  the  lex  situs,  the  law  of 
the  place  where  the  property  is  kept  and  used.  Green  v.  Van 
Buskirk,  5  Wall.  307,  and  7  Wall.  139;  Hervey  v.  Rhode  Island 
Locomotive  Works,  93  U.  S.  664;  Harkness  v.  Russell,  118  U.  S. 
663,  679;  Walworth  i-.  Harris,  129  U.  S.  355;  Story  on  Conflict  of 
Laws,  §  550;  Wharton  on  Conflict  of  Laws,  §§  297-311.  As 
observed  by  Mr.  Justice  Story,  in  his  commentaries  just  cited, 
"although  movables  are  for  many  purposes  to  be  deemed  to  have 
no  situs,  except  that  of  the  domicil  of  the  owner,  yet  this  being 
but  a  legal  fiction,  it  yields,  whenever  it  is  necessary  for  the  pur- 
pose of  justice  that  the  actual  situs  of  the  thing  should  be  exam- 
ined.   A  nation  within  whose  territory  any  personal  property  is 


1022     commerce:   decisions  since  close  of  civii.  wau. 

actually  situate  has  as  entire  dominion  over  it  while  therein,  in 
point  of  sovereif^nty  and  jurisdiction,  as  it  has  over  immoval)le 
property  situate  there." 

For  the  purposes  of  taxation,  as  has  been  repeatedly  affirmed 
by  this  court,  jiersonal  property  may  be  separated  from  its  owner; 
and  he  may  be  taxed,  on  its  account,  at  the  place  where  it  is, 
although  not  the  place  of  his  own  domicil,  and  even  if  he  is  not 
a  citizen  or  a  resident  of  the  State  which  imposes  the  tax.  Lane 
County  V.  Oregon,  7  Wall.  71,  77;  Railroad  Co.  v.  Penn.sylvania, 
15  Wall,  300,  323,  324,  328;  Railroad  Co.  v.  Peniston,  18  Wall.  5, 
20;  Tappan  r.  Merchants'  Hank.  10  Wall.  100,  400;  State  Rail- 
road Tax  Cases,  02  U.  S.  575,  007,  008;  Ikown  v.  Houston,  114 
U.  S.  622;  Coe  v.  Errol,  116  U.  S.'517,  524;  Mar>'e  v.  Baltimore  & 
Ohio  Railroad,  127  U.  S.  117,  123. 

It  is  equally  well  settled  that  there  is  nothing  in  the  Constitu- 
tion or  laws  of  the  United  States  which  prevents  a  State  from 
taxing  personal  property,  employed  in  interstate  or  foreign  com- 
merce, like  other  personal  property  within  its  jurisdiction.  Dela- 
ware Railroad  Tax,  18  Wall.  2(H),  232:  Telegraph  Co.  v.  Texas, 
105  U.  S.  100,  AM;  Cdoucester  Ferrj'  Co.  v.  Penn.sylvania,  114 
U.  S.  100,  200.  211;  Western  Union  Telegraph  Co.  v.  Attorney 
General  of  Mas.sachu.setts,  125  U.  S.  530.  5-10;  Mar>'e  v.  Baltimore 
&  Ohio  Railroad.  127  U.  S.  117.  121;  Leloup  v.  Mobile.  127  U.  S. 
640,  (VIO. 

Ships  or  vessels,  indeed,  engaged  in  interstate  or  foreign  com- 
merce upon  the  high  seas,  or  other  waters  which  are  a  conmion 
liighway,  and  having  their  home  port,  at  which  they  are  regis- 
tered under  the  laws  of  the  United  States,  at  the  domicil  of  their 
owners  in  one  State,  are  not  subject  to  taxation  in  another  State 
at  whose  ports  they  incidentally  and  t<'m])orarily  touch  for  the 
purpose  of  delivering  or  receiving  passengers  or  freight.  But  that 
is  because  they  are  not,  in  any  proper  sense,  abiding  within  its 
limits,  and  have  no  continuous  presence  or  actual  situs  within  its 
jurisdiction,  and,  therefore,  can  be  taxed  only  at  their  legal  situs, 
their  home  port  and  the  domicil  of  their  owners.  Hays  t-.  Pacific 
Mail  Steamship  Co..  17  How.  506;  St.  Louis  v.  Ferry  Co.,  11 
Wall.  423;  Morgan  /•.  Parham,  16  Wall.  471;  Wiggins  Ferry  Co. 
V.  East  St.  Louis,  107  U.  S.  365;  Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S.  196. 

Betw^een  ships  and  vessels,  having  their  situs  fixed  by  act  of 
Congress,  and  their  course  over  navigable  waters,  and  touching 
land  only  incidentally  and  temporarily;  and  cars  or  vehicles  of 


Pullman's  palace  car  co.  v.  pennsylvanlv,  1023 

any  kind,  having  no  situs  so  fixed,  and  traversing  the  land  only, 
the  distinction  is  obvious.  As  has  been  said  by  this  court:  "Com- 
merce on  land  between  the  different  States  is  so  strikingly  dis- 
similar, in  many  respects,  from  commerce  on  water,,  that  it  is 
often  difficult  to  regard  them  in  the  same  aspect  in  reference  to 
the  respective  constitutional  powers  and  duties  of  the  State  and 
Federal  governments.  No  doubt  commerce  by  water  was  prin- 
cipally in  the  minds  of  those  who  framed  and  adopted  the  Con- 
stitution, although  both  its  language  and  spirit  embrace  commerce 
by  land  as  well.  Maritime  transportation  requires  no  artificial 
roadway.  Nature  has  prepared  to  hand  that  portion  of  the  in- 
strumentality employed.  The  navigable  waters  of  the  earth  are 
recognized  public  highways  of  trade  and  intercourse.  No  fran- 
chise is  needed  to  enable  the  navigator  to  use  them.  Again,  the 
vehicles  of  commerce  by  water  being  instruments  of  intercom- 
munication with  other  nations,  the  regulation  of  them  is  assumed 
by  the  national  legislature.  So  that  state  interference  with  trans- 
portation by  water,  and  especially  by  sea,  is  at  once  clearly 
marked  and  distinctly  discernible.  But  it  is  different  with  trans- 
portation by  land."  Railroad  Co.  v.  Maryland,  21  Wall.  456,  470. 
In  Gloucester  Ferry  Co.  v.  Pennsylvania,  on  which  the  plaintiff 
in  error  much  relies,  the  New  Jersey  corporation  taxed  by  the 
State  of  Pennsylvania,  under  one  of  the  statutes  now  in  question, 
had  no  i)r()perty  in  Pennsylvania  except  a  lease  of  a  wharf  at 
which  its  steanilxKits  touched  to  land  and  receive  passengers  and 
freight  carried  across  the  Delaware  River;  and  the  diff'erence  in 
the  facts  of  that  ca.se  and  of  this,  and  in  the  rules  applicable,  was 
clearly  incHcated  in  the  opinion  of  the  court  as  follows:  "It  is 
true  that  the  property  of  corporations  engaged  in  foreign  or  inter- 
state commerce,  as  well  as  the  property  of  corporations  engaged 
in  other  busine.ss,  is  subject  to  taxation,  provided  always  it  be 
within  the  jurisdiction  of  the  State."  114  U.  S.  206.  "While  it 
is  conceded  that  the  property  in  a  State  belonging  to  a  foreign 
corporation  engaged  in  foreign  or  interstate  commerce  may  be 
taxed  equally  with  Uke  property  of  a  domestic  corporation  en- 
gaged in  that  business,  we  are  clear  that  a  tax  or  other  burden 
imposed  on  the  property  of  either  corporation  because  it  is  used 
to  carry  on  that  commerce,  or  upon  the  transportation  of  persons 
or  property,  or  for  the  navigation  of  the  public  waters  over  which 
the  transportation  is  made,  is  invaUd  and  void,  as  an  interference 
with,  and  an  obstruction  of,  the  power  of  Congress  in  the  regula- 
tion of  such  commerce."    114  U.  S.  211. 


1021     commerce:    decisions  since  close  of  civil  \vai{. 

Much  reliance  is  also  placed  by  the  phiintifT  in  error  upon  the 
cases  in  which  this  court  has  decided  that  citizens  or  corj)()rations 
of  one  State  cannot  he  taxed  by  another  State  for  a  license  or 
privilege  to  carry  on  interstate  or  foreign  commerce  within  its 
limits.  But  in  each  of  those  cases  the  tax  was  not  upon  tin'  proj>- 
erty  employed  in  the  business,  but  upon  the  rip;ht  to  carry  on 
the  business  at  all,  and  was  therefore  held  to  impose  a  direct 
l)urden  upon  the  commerce  itself.  Moran  r.  New  Orleans,  112 
r.  S.  ()'.».  74;  Pickard  v.  Pullman's  Southern  Car  Co.,  117  U.  S. 
34,  43;  Uobbins  v.  Shelby  TaxiiiR  District,  1'2()  V.  S.  489,  497; 
T^eloup  r.  Mobile,  127  l'.  S.  (i4(),  ()44.  For  the  same  reason,  a  tax 
upon  the  p;ro.ss  receipts  tlerived  from  the  transportation  of  ])jis- 
sengers  and  goods  between  one  State  and  other  States  or  foreign 
nations  has  l)een  held  to  be  invalid.  Fargo  r.  Michigan,  121  ['.  S. 
230;  Philadelphia  tfc  Southern  Steamship  Co.  v.  I'eim.sylvania.  122 
U.  S.  320. 

The  tax  now  in  question  is  not  a  licen.se  tax  or  a  privilege  tax; 
it  is  not  a  tax  on  business  or  occupation;  it  is  not  a  tax  on,  or 
becau.se  of,  the  tran.sportation,  or  the  right  of  transit,  of  persons 
or  property  through  the  State  to  other  States  or  countries.  The 
tax  is  imposed  equally  on  corjiorations  doing  business  within  the 
State,  whether  domestic  or  foreign,  and  whether  engaged  in 
interstate  commerce  or  not.  The  tax  on  the  capital  of  the  cor- 
poration, on  account  of  its  property  within  the  State,  is,  in  sul>- 
stance  and  etTect,  a  tax  on  that  pro]>erty.  (Jloucester  Ferry 
Co.  V.  Penn.sylvania,  114  U.  S.  196,  209;  Western  Union  Tele- 
graph Co.  V.  Attorney  General  of  Massachusetts,  125  U.  S.  530, 
552.  This  is  not  only  admitted,  but  insisted  on,  by  the  plaintifT 
in  error. 

The  cars  of  this  company  within  the  State  of  Pennsylvania  are 
employed  in  interstate  commerce;  l)ut  their  being  so  emi)loyed 
does  not  exempt  them  from  taxation  by  the  State;  and  the  State 
has  not  taxed  them  because  of  their  being  so  employed,  but 
because  of  their  being  within  its  territory  and  jurisdiction.  The 
cars  were  continuously  and  permanently  employed  in  going  to 
and  fro  upon  certain  routes  of  travel.  If  they  had  never  passed 
beyond  the  limits  of  Penn.sylvania,  it  could  not  be  doubted  that 
the  State  could  tax  them,  like  other  property,  within  its  borders, 
notwithstanding  they  were  employed  in  interstate  commerce. 
The  fact  that,  instead  of  stopping  at  the  state  boundary,  they 
cross  that  boundary  in  going  out  and  coming  back,  cannot  affect 
the  power  of  the  State  to  le\'>'  a  tax  upon  them.     The  State, 


Pullman's  palace  car  co.  v.  Pennsylvania.         1025 

having  the  right,  for  the  purposes  of  taxation,  to  tax  any  personal 
property  found  within  its  jurisdiction,  without  regard  to  the 
place  of  the  owner's  domicil,  could  tax  the  specific  cars  which  at 
a  given  moment  were  \\-ithin  its  borders.  The  route  over  which 
the  cars  travel  extending  beyond  the  limits  of  the  State,  particular 
cars  may  not  remain  wnthin  the  State;  but  the  company  has  at 
all  times  substantially  the  same  number  of  cars  within  the  State, 
and  continuously  and  constantly  uses  there  a  portion  of  its  prop- 
erty; and  it  is  distinctly  found,  as  matter  of  fact,  that  the  com- 
pany continuously,  throughout  the  periods  for  which  these  taxes 
were  levied,  carried  on  business  in  Pennsylvania,  and  had  about 
one  hundred  cars  within  the  State. 

The  mode  which  the  State  of  Pennsylvania  adopted,  to- ascer- 
tain the  proportion  of  the  company's  property  upon  which  it 
should  be  taxed  in  that  State,  was  by  taking  as  a  basis  of  assess- 
ment such  proportion  of  the  capital  stock  of  the  company  as  the 
number  of  miles  over  which  it  ran  cars  within  the  State  bore  to 
the  whole  number  of  miles,  in  that  and  other  States,  over  which 
its  cars  were  run.  This  was  a  just  and  equitable  method  of 
a.sses.sment ;  and,  if  it  were  adopted  by  all  the  States  through 
which  these  cars  ran,  the  company  would  be  assessed  upon  the 
whole  value  of  its  capital  stock,  and  no  more.  .  .  . 

'i'hc  court  is  of  opinion  that  the  tax  in  question  is  constitu- 
tional and  valid.  The  result  of  holding  otherwise  would  be  that, 
if  all  the  States  should  concur  in  abandoning  the  legal  fiction 
that  iH'rsonal  property  has  its  situs  at  the  owner's  domicil,  and 
in  adopting  the  system  of  taxing  it  at  the  place  at  which  it  is 
used  and  by  whose  laws  it  is  protected,  property  employed  in 
any  business  requiring  continuous  and  constant  movement  from 
one  State  to  another  would  escape  taxation  altogether. 

Judgment  affirmed. 

Bradley,  J.,  with  whom  concurred  Field  and  Harlan,  J  J., 
di.>vsenting.  .  .  . 

Brown,  J.,  .  .  .  took  no  part.  .  .  . 


1026    commeiu'k:    dkcisions  since  close  of  civil  wak. 

CRUTCHEH  V.   KENTUCKY. 
Supreme  Court  of  the  United  States.     1891. 

[in  United  States,  47.]' 

Error  to  the  Court  of  Apix^als  of  Kentucky. 
In  the  Circuit  Court  of  Franklin  (bounty,  Crutcher  was  indicted 
for  acting  as  agent  of  the   United  States  Express  Company,  a 
New  York  coriK)rati()n,  without   having  a  licen.se  for  hini.*ielf  or 
for  the  company.    He  pleadrd  not  guilty.    The  Kentucky  statute 
of  March 2,  18G0,  "to  regulate  agencies  of  foreign  express  compa- 
nies," as  amended  in  IHtiO,  made  it  unlawful  for  "any  agent  of 
any  express  company,"  not  incor|)orated  in  Kentucky,  "to  set 
up,  estahlish,  or  carry  on  the  business  of  trans|)ortation  in  this 
State,"  without  a  license.      It  enacted  that  before  license  should 
issue  to  "any  agent  of  any  company  incoriH)nited  by  any  State  of 
the  United  States,  there  shall  be  filed  ...  a  copy  of  the  charter 
and   a  .statement   .  .  .  showing  its  jussets  and   liabilities, 
and  .  .  .  an    actual    capital    of  .  .  .  $ir>().(X.K).*'    and    that 
before  license  should  issue  to  "any  agent  of  any  express  or  trans- 
portation company  incorjxtrated  by  any  foreign  govenmient,  or 
any   as.sociation  or   partnership   acting   under   the   laws  of  any 
foreign  government,  there  shall  Ix-  filed  ...  a  statement  setting 
forth  the  act  or  incori-K)ration  or  charter,  or  the  articles  of  asso- 
ciation, .  .  .  and  .  .  .  evidence  .  .  .  that  such  company  has  on 
deposit  in  the  United  States  or  has  invested  in  .  .  .  stocks  in  the 
United    States,  .  .  .  $150,000."      The    statute    required    annual 
statements,  an  annual   license   fee  of  $5,  a  fee  of  $5  for  filing 
copy  of  charter,  and  a  fee  of  SIO  for  filing  the  original  or  annual 
statement.    The  fine  for  violating  the  statute  wa.s  not  less  than 
$100  nor  more  than  S500,  at  the  discretion  of  the  jur>'.     There 
was  an  agreed  statement  that  the  defendant  had  acted  for  the 
company,  that  neither  he  nor  the  company  had  a  license,  and  that 
the  business  done  by  Crutcher  wholly  inside  the  State  was  alx)ut 
one-fourth  of  the  whole   business   done  by  him   and   that  this 
was  the  approximate  division  of  the  company's  entire  Kentucky 
business.     A  jury  was  waived;  and  the  defendant  was  found 
guilty  and  was  sentenced  to  a  fine  of  SI 00  and  costs.    The  Court 
of  Appeals  affirmed  the  judgment  (12  S.  W.  141). 

W.  W.  Macfarland,  for  plaintiff  in  error;  and  J.  P.  Helm,  and 
another,  contra. 

1  The  statement  has  been  shortened.  —  Ed. 


CRUTCHER  V.   KENTUCKY.  1027 

Bradley,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

If  the  subject  was  one  which  appertained  to  the  jurisdiction  of 
the  State  legislature,  it  may  be  that  the  requirements  and  condi- 
tions of  doing  business  within  the  State  would  be  promotive  of 
the  public  good.  It  is  clear,  however,  that  it  would  be  a  regula- 
tion of  interstate  commerce  in  its  application  to  corporations  or 
a.ssociations  engaged  in  that  business;  and  that  is  a  subject  which 
belongs  to  the  jurisdiction  of  the  National  and  not  the  State  legis- 
lature. Congress  would  undoubtedly  have  the  right  to  exact 
from  associations  of  that  kind  any  guarantees  it  might  deem 
necessary  for  the  public  security,  and  for  the  faithful  transaction 
of  business;  and  as  it  is  within  the  province  of  Congress,  it  is  to 
V)e  presumed  that  Congress  has  done,  or  will  do,  all  that  is  neces- 
sary and  proper  in  that  regard.  Besides,  it  is  not  to  be  presumed 
that  the  State  of  its  origin  has  neglected  to  require  from  any  such 
(•()rp<^ration  proper  guarantees  as  to  capital  and  other  securities 
necessary  for  the  public  safety.  If  a  partnership  firm  of  individ- 
uals should  undertake  to  carry  on  the  business  of  interstate 
commerce  between  Kentucky  and  other  States,  it  would  not  be 
within  the  province  of  the  State  legislature  to  exact  conditions  on 
which  they  should  carry  on  their  business,  nor  to  require  them 
to  take  out  a  license  therefor.  To  carry  on  interstate  commerce 
is  not  a  franchise  or  a  privilege  granted  by  the  State;  it  is  a  right 
which  every  citizen  of  the  United  States  is  entitled  to  exercise 
under  the  Constitution  and  laws  of  the  United  States;  and  the 
accession  of  mere  corporate  facilities,  as  a  matter  of  convenience 
in  carrying  on  their  business,  cannot  have  the  effect  of  depriving 
them  of  such  right,  unless  Congress  should  see  fit  to  interpose 
.some  contrary  regulation  on  the  subject. 

It  has  frequently  been  laid  douii  by  this  court  that  the  power 
of  Congress  over  interstate  commerce  is  as  absolute  as  it  is  over 
foreign  commerce.  Would  any  one  pretend  that  a  State  legisla- 
ture could  prohibit  a  foreign  corporation,  —  an  English  or  a 
French  transportation  company,  for  example,  —  from  coming 
into  its  borders  and  landing  goods  and  passengers  at  its  wharves, 
and  soliciting  goods  and  passengers  for  a  return  voyage,  without 
first  obtaining  a  license  from  some  State  officer,  and  filing  a  sworn 
statement  as  to  the  amount  of  its  capital  stock  paid  in?  And 
why  not?  Evidently  because  the  matter  is  not  within  the  prov- 
ince of  State  legislation,  but  within  that  of  national  legislation. 
Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  238.  The  prerogative, 
the  responsibility,  and  the  duty  of  providing  for  the  security  of 


1028     commerce:    deiisions  since  close  of  civil  war. 

th(>  citizens  and  tho  people  of  the  United  States  in  relation  to 
foreign  corporate  bodies,  or  foreign  individuals  with  whom  they 
may  have  relations  of  foreign  commerce,  belong  to  the  govern- 
ment of  the  United  States,  and  not  to  the  governments  of  the 
several  States;  and  confidence  in  that  regard  may  be  reposed  in 
the  National  legislature  without  any  anxiety  or  apprehension  aris- 
ing from  the  fact  that  the  subject-matter  is  not  within  the  prov- 
ince or  jurisdiction  of  the  State  legislatures.  And  the  same  thing 
is  exactly  true  with  regard  to  interstate  commerce  as  it  is  with 
regard  to  foreign  commerce.  No  difference  is  perceivable  between 
the  two.  Telegraph  Co.  v.  Texas,  105  U.  S.  4(50;  Gloucester  Ferry 
Co.  V.  Penn.sylvania,  114  U.  S.  19G,  205,  211;  Phila.  Steamship  Co. 
V.  Pennsylvania,  122  U.  S.  326,  342;  McCall  v.  California,  136 
U.  S.  104,  110;  Norfolk  &  Western  Railroad  v.  Pennsylvania,  136 
U.  S.  114,  118.  As  was  said  by  Mr.  Justice  Lamar,  in  the  case 
last  cited,  "It 'is  well  settled  by  numerous  decisions  of  this  court, 
that  a  State  cannot  under  the  guise  of  a  license  tax,  exclude  from 
its  jurisdiction  a  foreign  corporation  engaged  in  interstate  com- 
merce, or  impose  any  burdens  upon  such  commerce  within  its 
limits." 

We  have  repeatedly  decided  that  a  State  law  is  unconstitu- 
tional and  void  which  requires  a  party  to  take  out  a  license  for 
carrying  on  interstate  couim(Tct%  no  matter  how  specious  the 
pretext  may  be  for  imposing  it.  Pickard  r.  Pullman  Southern 
Car  Co.,  117  U.  S.  34;  Robbins  v.  Shelby  County  Taxing  District, 
120  U.  S.  489;  Lelouji  v.  Mobile.  127  U.  S.  640;  Asher  v.  Texas, 
128  U.  S.  129;  Stoutenburgh  v.  Hennick,  129  U.  S.  141;  McCall  v. 
California,  136  U.  S.  104;  Norfolk  &  Western  Railroad  Co.  v. 
Pennsylvania,  136  U.  S.  114. 

As  a  summation  of  the  whole  matter  it  was  aptly  said  by  the 
present  Chief  Justice  in  Lyng  v.  Michigan,  135  U.  S.  161,  166: 
"We  have  repeatedly  held  that  no  State  has  the  right  to  lay  a 
tax  on  interstate  commerce  in  any  form,  whether  by  way  of 
duties  laid  on  the  transportation  of  the  subjects  of  that  com- 
merce, or  on  the  receipts  derived  from  that  transportation,  or  on 
the  occupation  or  business  of  carrying  it  on,  for  the  reason  that 
taxation  is  a  burden  on  that  commerce,  and  amounts  to  a  regu- 
lation of  it,  which  belongs  solely  to  Congress." 

We  do  not  think  that  the  difficulty  is  at  all  obviated  by  the 
fact  that  the  express  company,  as  incidental  to  its  main  business 
(which  is  to  carry  goods  between  different  States),  does  also  some 
local  business  by  carrying  goods  from  one  point  to  another  within 


CRUTCHER  V.   KENTUCKY.  1029 

the  State  of  Kentucky.  This  is,  probably,  quite  as  much  for  the 
accommodation  of  the  people  of  that  State  as  for  the  advantage 
of  the  company.  But  whether  so  oi;not,  it  does  not  obviate  the 
objection  that  the  regulations  as  to  license  and  capital  stock  are 
imposed  as  conditions  on  the  company's  carrying  on  the  business 
of  interstate  commerce,  which  was  manifestly  the  principal  object 
of  its  organization.  These  regulations  are  clearly  a  burden  and 
a  restriction  upon  that  commerce.  Whether  intended  as  such  or 
not  they  operate  as  such.  But  taxes  or  license  fees  in  good  faith 
imposed  exclusively  on  express  business  carried  on  wholly  within 
the  State  would  be  open  to  no  such  objection. 

The  case  is  entirely  different  from  that  of  foreign  corporations 
seeking  to  do  a  business  which  does  not  belong  to  the  regulating 
power  of  Congress.  The  insurance  business,  for  example,  cannot 
be  carried  on  in  a  State  by  a  foreign  corporation  without  comply- 
ing with  all  the  conditions  imposed  by  the  legislation  of  that 
State.  So  with  regard  to  manufacturing  corporations,  and  all 
other  corporations  whose  business  is  of  a  local  and  domestic 
nature,  which  would  include  express  companies  whose  business  is 
confined  to  points  and  places  wholly  within  the  State.  The  cases 
to  this  effect  are  numerous.  Bank  of  Augusta  v.  Earle,  13  Pet. 
519;  Paul  v.  Virginia,  8  Wall.  168;  Liverpool  Insurance  Company 
V.  Massachusetts,  10  Wall.  566;  Cooper  Manufacturing  Company 
V.  Ferguson,  113  U.  S.  727;  Phila.  Fire  Association  v.  New  York, 
119  U.S.  110. 

But  the  main  argument  in  support  of  the  decision  of  the  Court 
of  Appeals  is  that  the  act  in  question  is  essentially  a  regulation 
made  in  the  fair  exercise  of  the  police  power  of  the  State.  But  it 
does  not  follow  that  everything  which  the  legislature  of  a  State 
may  deem  essential  for^he  good  order  of  society  and  the  well- 
being  of  its  citizens  can  be  set  up  against  the  exclusive  power  of 
Congress  to  regulate  the  operations  of  foreign  and  interstate 
commerce.  We  have  lately  expressly  decided  in  the  case  of  Leisy 
V.  Hardin,  135  U.  S.  100,  that  a  State  law  prohibiting  the  sale  of 
intoxicating  liquors  is  void  when  it  comes  in  conjflict  with  the 
express  or  implied  regulation  of  interstate  commerce  by  Congress, 
declaring  that  the  traffic  in  such  liquors  as  articles  of  merchandise 
between  the  States  shall  be  free.  .  .  . 

The  character  of  police  regulation,  claimed  for  the  requirements 
of  the  statute  in  question,  is  certainly  not  such  as  to  give  them  a 
controlling  force  over  the  regulations  of  interstate  commerce 
which  may  have  been  expressly  or  impliedly  adopted  by  Con- 


1030     commerce:   decisions  since  close  of  civil  war. 

gress,  or  such  as  to  exempt  them  from  nullity  when  repugnant  to 
the  exclusive  power  given  to  Congress  in  relation  to  that  com- 
merce. ...  .  Reversed.  .  .  .' 

Fuller,  C.  J.,  and  Gray,  J.,  dissented. 

Brown,  J.,  .  .  .  took  no  part  in  the  decision. 


In   re   DEBS. 
Supreme  Court  of  the  United  States.     1895. 

[158  UnUed  States,  564.] » 

Original. 

This  was  a  petition  for  a  writ  of  habeas  corpus  in  behalf  of 
Debs  and  others.  The  petitioners  had  l)<>en  imprisoned  for  con- 
tempt because  of  disobeying  an  injunction  obtained  by  the 
United  States  from  the  Circuit  Court  of  the  United  States  for 
the  Northern  District  of  Illinois  (04  Fed.  724). 

Lyman  Trumbull  and  others,  for  {X'titioners;  and  Richard 
Olney,  Attorney  General,  and  others,  for  the  United  States. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  United  States,  finding  that  the  interstate  transp<3rtation 
of  persons  and  property,  as  well  as  the  carriage  of  the  mails,  is 
forcibly  obstructed,  and  that  a  combination  and  con^spiracy 
exists  to  subject  the  control  of  such  transportation  to  the  will  of 
the  conspirators,  applied  to  one  of  their  courts,  sitting  as  a  court 
of  equity,  for  an  injunction  to  restrain  such  obstruction  and  pre- 
vent carrying  into  effect  such  conspiracj^  Two  questions  of  im- 
portance are  presented:  First.  Are  the  relations  of  the  general 
government  to  interstate  commerce  and  the  transportation  of 
the  mails  such  as  authorize  a  direct  interference  to  prevent  a 
forcible  obstruction  thereof?  Second.  If  authority  exists,  as 
authority  in  governmental  affairs  implies  both  power  and  duty, 
has  a  court  of  equity  jurisdiction  to  issue  an  injunction  in  aid  of 
the  performance  of  such  duty? 

First.  What  are  the  relations  of  the  general  government  to 
interstate  conamerce  and  the  transportation  of  the  mails?    They 

»  See  International  Text-Book  Co.  v.  Pigg,  217  U.  S.  91  (1910);  and  Sioux 
Remedy  Co.  v.  Cope,  235  U.  S.  197  (1914).  — Ed. 
*  The  statement  has  not  been  reprinted.  —  Ed. 


In  re  debs.  1031 

are  those  of  direct  supervision,  control,  and  management.  While 
under  the  dual  system  which  prevails  with  us  the  powers  of  gov- 
ernment arc  distributed  between  the  State  and  the  Nation,  and 
while  the  latter  is  properly  styled  a  government  of  enumerated 
powers,  yet  within  ihe  limits  ol  such  enumeration  it  has  alFthe 
attfiTSuIeToi'  soverelgntyTand,  in  the  exercise  of  those  enumerated 
pniiTF'Vt:Hir2r'tly  "r""  "'^  '•^l>'^^^^■■,  .iiurnrit-tfaroTTgh thrmter- 
-mpjifl.TF'a^CY  of  thp  State.  .  .  . 

"i^ng  the  powers  expressly  given  to  the  national  government 

are  the  control  of  interstate  commerce  and  the  creation  and 

management  of  a  post  office  system  for  the  nation.     Article  I, 

section  8,  of  the  Constitution  provides  that  "the  Congress  shall 

have    power.  .  .  .  Third,    to    regulate    commerce    with   foreign 

nations  and  among  the  several  States,  and  with  the  Indian  tribes. 

.  Seventh,  to  establish  post  offices  and  post  roads." 

Congress  has  exercised  the  power  granted  jnjespect  to  inter- 

statrcoinmcrce"in  a  variety  of  legislative  ac"ts^^Passing.  by  for 

fRTprcsent  all  that  legislation  m  t'especT  to  commerce  by  water, 

and  considering  only  that  which  bears  upon  railroad  interstate 

transportation,  (for  this  is  the  specific  matter  involved  in  this 

case,)  these  acts  may  be  noticed:  First,  that  of  June  15,  1866, 

c.  124,  14  Stat.  66,  carried  into  the  Revised  Statutes  as  section 

5258,  which  provides: 

"Whereas  the  Constitution  of  the  United  States  confers  upon 
Congress,  in  express  terms,  the  power  to  regulate  commerce 
among  the  several  States,  to  establish  post  roads,  and  to  raise 
and  support  armies:  Therefore,  Be  it  enacted  hy  the  Senate  and 
House  of  Representatives  of  the  United  States  of  America  m  Congress 
assembled,  That  every  railroad  company  in  the  United  States 
whoso  road  is  operated  by  steam,  its  successors  and  assigns,  be, 
and  is  hereby,  authorized  to  carry  upon  and  over  its  road,  boats, 
bridges,  and  ferries  all  passengers,  troops,  government  supplies, 
mails  freight,  and  property  on  their  way  from  any  State  to  an- 
other State,  and  to  receive  compensation  therefor,  and  to  connect 
with  roads  of  other  States  so  as  to  form  continuous  lines  for  the 
transportation  of  the  same  to  the  place  of  destination." 

Second.  That  of  March  3,  1873,  c.  252,  17  Stat.  584,  (Rev. 
Stat  §^  4386  to  4389,)  which  regulates  the  transportation  of  live 
stock  over  interstate  railroads.  Third.  That  of  May  29,  1884, 
c  60  §  6  23  Stat.  31,  32,  prohibiting  interstate  transportation  by 
railroads 'of  live  stock  affected  with  any  contagious  or  infectious 
disease.    Fourth.    That  of  February  4,  1887,  c.  104,  24  Stat.  379, 


10.32    commerce:    decisions  since  close  of  civil  war. 

with  its  amendments  of  March  2,  1889,  c.  382,  25  Stat.  855,  and 
Fel)ruary  10,  1891,  e.  128,  26  Stat.  743,  known  as  the  "interstate 
commerce  act,"  by  which  a  commi.s.sion  wa^j  created  with  larfj;e 
powers  of  regulation  and  control  of  interstate  commerce  h^-  rail- 
roads, and  the  sixteenth  .section  ot  which  act  gives  to  the  courts 
of  the  United  States  power  to  enforce  the  orders  of  the  commission. 
Fifth.  That  of  OctolxT  1,  1888,  c.  10G3,  25  Stat.  501,  providing 
for  arl)itration  between  railroad  interstate  companies  and  their 
employes;  and,  si.xth,  the  act  of  March  2,  1893,  c.  190,  27  Stat. 
531,  recjuiring  the  use  of  automatic  couplers  on  interstate  trains, 
and  empowering  the  Interstate  Commerce  Commission  to  enforce 
its  provisions. 

Under  the  power  vested  in  Congress  to  establish  post  offices 
and  post  roads,  Congress  has,  by  a  mass  of  legislation,  established 
the  great  post-office  system  of  the  country,  with  all  its  detail  of 
organization,  its  machinery  for  the  transaction  of  business,  de- 
fining what  shall  be  carried  and  what  not,  and  the  prices  of 
carriage,  and  al.s<j  prescribing  penalties  for  all  ofTenc(>s  against  it. 

Obviously  these  |K)wers  given  to  the  national  government  over 
interstate  commerce  and  in  respect  to  the  transportation  of  the 
mails  were  not  dormant  and  unu.sed.  Congress  ha<l  takcMi  hold 
of  these  two  matters,  antl  l)j'  various  and  specific  acts  had  as- 
sumed and  exercised  the  powers  given  to  it,  and  was  in  the  full 
discharge  of  its  duty  to  regulate  interstate  commerce  and  carry 
the  mails.  The  validity  of  such  exercise  and  the  exdusiveness  of 
its  control  had  been  again  and  again  presented  to  this  court  for 
consideration.  It  is  curious  to  note  the  fact  that  in  a  large  pro- 
portion of  the  cases  in  respect  to  interstate  commerce  brought  to 
this  court  the  question  presented  was  of  the  validity  of  State 
legislation  in  its  bearings  upon  interstate  commerce,  and  the 
uniform  course  of  decision  has  been  to  declare  that  it  is  not  within 
the  competency  of  a  State  to  legislate  in  such  a  manner  as  to 
obstruct  interstate  commerce.  ~  If  a  State  with  itj  recognized 
powers  of  sovereignty  is  impotent  to  obstruct  interstate  com- 
merce, can  it  ])e  that  any  mere  voluntaTy]associatjon_o,f  incjJY^tl- 
uals  within  the  Innits  ot  that  State  "has  a  powefwhich  th£-St|ftte 
itseii  aoes  not  possess  r 

As,  undet"  Ihc  Constitution,  power  over  interstate  commerce 
and  the  transportation  of  the  mails  is  vested  in  the  national  gov- 
ernment, and  Congress  by  virtue  of  such  grant  has  assumed  actual 
and  direct  control,  it  follows  that  the  national  government  may 
prevent  any  unlawful  and  forcible  interference  therewith.     But 


In  re  debs.  1033 

how  shall  this  be  accomplished?  Doubtless,  it  is  within  the 
competency  of  Congress  to  prescribe  by  legislation  that  any  in- 
terference with  these  matters  shall  be  offences  against  the  United 
States,  and  prosecuted  and  punished  by  indictment  in  the  proper 
courts.  But  is  that  the  only  remedy?  Have  the  vast  interests 
of  the  nation  in  interstate  commerce,  and  in  the  transportation 
of  the  mails,  no  other  protection  than  lies  in  the  possible  punish- 
ment of  those  who  interfere  with  it?  To  ask  the  question  is  to 
answer  it.  By  article  3,  section  2,  clause  3,  of  the  Federal  Con- 
stitution it  is  provided:  "The  trial  of  all  crimes  except  in  cases 
of  impeachment  shall  be  by  jury;  and  such  trial  shall  be  held  in 
the  State  where  the  said  crime  shall  have  been  committed."  If 
all  the  inhabitants  of  a  State,  or  even  a  great  Vjody  of  them, 
should  combine  to  obstruct  interstate  commerce  or  the  transpor- 
tation of  the  mails,  prosecutions  for  such  offences  had  in  such  a 
community  would  i)C  doomed  in  advance  to  failure.  And  j.f  the 
certainty  of  such  failure  was  knowm,  and  the  national  govern- 
ment had  no  other  way  to  enforce  the  freedom  ofHnter'state 


commerce  and  thTTransportation  of  the  mails  than  by  prosecu- 
t inn  flnH  punishment  fofinterference  therewith,  the  whole  in- 
terests"oFthe  nation  in  these  rgspects  would  be  at  the  absolute 
me'rcv^gTportionjjfJiiE-inhabitaats  of  that  smgirStatc; 

Btrrtierc' fs'no  such  impotency  in  the  national  government. 
The  entire  strength  of  the  nation^may  be  used  to  enforce  in  any 
parfoTTFielancr The  full  anTfree  exercise  of  all  national  powers 
an4-44y'--g^^J25ty^*^  ^11  ripjhts  entrusted  by  the  Constitution  to 
ifs~c5fe?  Thestrong  arm  of  the  national  government  may  be 
puTforth  to  brush  away  all  obstructions  to  the  freedom  of  inter- 
state commerce  or  the  transportation  of  tTie  mails.  If  the  emer- 
gency arises,  the  army  of  the  Nation,  and  all  its  militia,  are  at 
the  service  of  the  Nation  to  compel  obedience  to  its  laws. 

But  pa-ssing  to  the  second  question,  is  there  no  other  alternative 
than  The  use  of  force  on  the  part  of  the  executive  authorities 
whenever  obstructions  arise  to  the  freedom  of  interstate  commerce 
or  the  transportation  of  the  mails?  Is  the  army  the  only  instru- 
ment by  which  rights  of  the  public  can  be  enforced  and  the  peace 
of  the  nation  preserved?  Grant  that  anypublicjiuisance  may  be 
forcibly  abatecLgithei^t  theinstance  5riFie"authorities,  or  by 
an>niidi\nduarsuffering"private  damage  theretrom,  the  existence 
of  this^right  of  forcible  abatement  is  not  inconsisfent  with  nof 
does  iT  destroy  the  right  oTappeal  in  an  orderly  way  to  the  courts 
foTarrudicial  determination,  andean  exercise  of  Lheii  puwrfs  by 


1034     commerce:    decisions  since  close  of  civil  w.vii. 

writ   of   injunction   and  otherwise  to  accomplish  _the  same   n*- 

su!r"r — • — 

Neither  can  it  Ix'  doubted  that  the  government  has  such  an 
interest  in  the  subject-matter  as  enables  it  to  appear  as  party 
plaintiff  in  this  suit.  It  is  said  that  equity  only  interferes  for  the 
j)V()tection  of  property,  and  that  the  government  has  no  property 
interest.  A  sufficient  reply  is  that  the  United  States  have  a 
j)roperty  in  the  mails,  the  i)rotection  of  which  Wiis  one  of  the 
purposes  of  this  bill.   .   .   . 

We  do  not  care  to  place  our  decision  upon  this  ground  alone. 
FJvery  government,  entrusted,  by  the  ver}'  terms  of  its  being, 
with  powers  and  duties  to  be  exerci.sed  and  discharged  for  the 
general  welfare,  has  a  right  to  apply  to  its  ovm  courts  for  any 
proper  a.ssistance  in  the  exercise  of  the  one  and  the  discharge  of 
the  other,  and  it  is  no  sufficient  answer  to  its  appeal  to  one  of 
those  courts  that  it  hius  no  pecuniary  interest  in  the  matter. 
The  obligation  which  it  is  under  to  promote  the  interest  of  all, 
and  to  pn-vent  the  wrongdohig  of  one  resulting  in  injury  to  the 
general  welfare  is  often  of  itself  sufficient  to  give  it  a  standing  in 
court.  .  .  . 

The  national  government,  given  by  the  (  oiisiiiution  power  to 
regulate  interstate  commerce,  has  by  express  statute  assumed 
jurisdiction  over  such  commerce  when  carried  ujion  railroads. 
It  is  charged,  therefore,  with  the  duty  of  keeping  those  highways 
of  interstate  conunerce  free  from  obstruction,  for  it  has  always 
l)een  recognized  as  one  of  the  powers  and  duties  of  a  government 
to  remove  ol)structions  from  the  highways  under  its  control.  .  .  . 

Up  to  a  recent  date  commerce,  both  interstate  and  interna- 
tional, was  mainly  by  water,  and  it  is  not  strange  that  lioth  the 
lep;islation  of  Congress  and  the  cases  in  the  courts  have  been 
I)riucipally  concerned  therewith.  The  fact  that  in  recent  years 
interstate  commerce  has  come  mainly  to  be  carried  on  by  rail- 
roads and  over  artificial  highways  has  in  no  manner  narrowed 
the  scope  of  the  constitutional  provision,  or  abridged  the  power 
of  Congress  over  such  commerce.  On  the  contrary,  the  same 
fulness  of  control  exists  in  the  one  case  as  in  the  other,  and  the 
same  power  to  remove  obstructions  from  the  one  as  from  the 
other.  .  .  . 

The  petition  for  a  \vrit  of  habeas  corpus  is  Denied. 


UNITED   STATES  V.    RIO   GRANDE   DAM   AND   IRRIGATION   CO.      1035 


UNITED   STATES  v.   RIO   GRANDE  DAM  AND 
IRRIGATION   COMPANY. 

Supreme  Court  of  the  United  States.     1899. 
[174  United  States,  690.]  ' 

Appeal  from  the  Supreme  Court  of  the  Territory  of  New- 
Mexico. 

In  the  District  Court  of  the  Third  Judicial  District  of  New 
Mexico,  the  United  States  filed  a  bill_to_enjoin  the  construction 
of  a  dam  acro.ss  the  Rio  Grande  River  in  that  Territory,  averring 
thai  "Hie  purpose  T>f^tle^3am  was  to' accumulate  and  impound 
water  for  irrigation  purposes,  that  the  Rio  Grande  was  navigable 
by  steamijoats  for  a  distance  of  350  miles  from  its  mouth,  was 
susceptible  of  navigation  farther,  and  was  navigable  for  floating 
rafts,  logs,  and  poles  between  El  Paso  and  a  point  above  the  pro- 
jected dam,  and  that  -the  result  of  the  irrigation  project,  by 
reason  of  increase  in  evaporation,  would  be  to  obstruct  naviga- 
bility scriijusly;  and  it  set  forth  treaty  .stipulations  with  Mexico. 
A_UiUJLl)21^y  injunction  was  issued.  The  pleas  and  answer  were 
to  the  efifect  that  the  river  was  not  navigable  in  New  Mexico, 
that  much  of  the  water  was  already  appropriated,  and  that  the 
projKjsed  dam  would  not  seriously  obstruct  navigability.  The 
United  States  filed  a  general  replication.  On  hearing,  the  court 
dissolved  the  injunction;  and  on  appeal  the  iiSupreme  Court  oT 
tlie  TerrITo7y~aftii med  the  xtPCl'ee. 

J.  W.  trriggs,  Attorney  General,  for  appellant;  and  J.  H. 
McGowan,  contra. 

Brewer,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  Supreme  Court  of  the  Territory,  as  appears  from  its 
opinion,  held  that  the  Rio  Grande  River  was  not  navigable  within 
the  limits  of  the  Territory  of  New  Mexico;  that,  therefore,  the 
United  States  had  no  jurisdiction  over  the  stream,  and  that, 
assuming  its  non-navigability  within  the  limits  of  the  Territory, 
the  plaintiff  was  not,  under  the  other  facts  set  forth  in  the  bill, 
entitled  to  any  relief.  .  .  . 

Examining  the  affidavits  and  other  evidence  introduced  in  this 
case,  it  is  clear  to  us  that  the  Rio  Grande  is  not  navigable  within 
the  limits  of  the  Territory  of  New  Mexico.  The  mere  fact  that 
logs,  poles,  and  rafts  are  floated  down  a  stream  occasionally  and 

1  The  statement  has  been  shortened.  —  Ed. 


1036     commerce:   decisions  since  close  of  civil  wah. 

ill  tinu's  of  high  water  does  not  make  it  a  navigable  river.  It  was 
saiil  in  Tlie  Moiitdlo.  20  Wall.  430.  430.  "that  thos<-  rivers  nuist 
he  regarch'd  as  puhhc  navigable  rivers  in  law  whieh  are  navigable 
in  fact.  And  they  are  navigable  in  fact  when  they  are  used,  or 
are  susceptible  of  being  used,  in  their  ordinary  condition,  as 
highways  for  commerce,  over  which  trade  and  travel  are  or 
may  be  conducted  in  the  customary  modes  of  trade  and  travel 
on  water."  ... 

Neither  is  it  necessary  to  consider  the  treaty  stipulations.  .  .  . 
The  Rio  Grande,  so  far  as  it  is  a  navigable  stream,  lies  jis  much 
within  the  territory  of  the  United  States  as  in  that  of  Mexico,  it 
being  where  navigal)le  the  boundary  l)etween  the  two  nations, 
and  the  middle  of  the  chaimel  l)eing  the  tlividing  line.  Now,  the 
obligations  of  the  United  States  to  preserve  for  their  own  citizens 
the  navigability  of  its  navigable  waters  is  certainly  as  great  as 
any  arising  1)V  treaty  or  international  law  to  other  nations  or 
their  citizens.  .  .  . 

We  may.  therefore  properly  limit  our  iiupiiry  to  the  effect  of 
the  |)ropose(l  (lam  and  appropriation  of  waters  ujH»n  the  naviga- 
bility of  the  Kin  (Irande,  aiul,  in  case  .such  proposed  action  tends 
to  destroy  such  iiavigal)ility,  the  extent  of  the  right  of  the  CJovern- 
ment  to  interfere.   .   .   . 

The  unquestioned  rule  of  the  common  law  was  that  eve/y 
riparian  owner  was  entitled  to  the  continued  natural  flow  of  the 
stream.  .  .  . 

While  this  is  undoubted,  and  the  rule  obtains  in  those  States  in 
the  Union  which  have  simply  adopted  the  common  law,  it  is  also 
true  that  as  to  every  stream  within  its  dominion  a  State  may 
change  this  common  law  rule  and  permit  the  appropriation  of 
the  flowing  waters  for  such  purposes  as  it  deems  wise.  Whether 
this  power  to  change  the  common  law  rule  and  {x^rmit  any  spe- 
cific and  separate  aj^propriation  of  the  waters  of  a  stream  belongs 
also  to  the  legislature  of  a  Territory,  we  do  not  deem  it  necessary 
for  the  purposes  of  this  case  to  inquire.  We  concede  arguendo 
that  it  does. 

Although  this  power  of  changing  the  common  law  rule  as  to 
streams  within  its  dominion  undouV)tedly  belongs  to  each  State, 
yet  two  limitations  must  be  recognized:  First,  that  in  the  absence 
of  specific  authority  from  Congress  a  State  cannot  by  its  legisla- 
tion destroy  the  right  of  the  United  States,  as  the  owner  of  lands 
bordering  on  a  stream,  to  the  continued  flow  of  its  waters;  so  far 
at  least  as  may  be  necessary  for  the  benficial  uses  of  the  govern- 


UNITED   STATES   V.    RIO   GRANDE   DAM   AND    IRRIGATION   CO.      1037 

ment  property.  Second,  that  it  is  limited  by  the  superior  power 
of  the  general  government  to  secure  the  uninterrupted  naviga- 
bility of  all  navigable  streams  w-ithin  the  limits  of  the  United 
States.  In  other  words,  the  jurisdiction  of  the  general  govern- 
ment over  interstate  commerce  and  its  natural  highways  vests 
in  that  government  the  right  to  take  all  needed  measures  to 
preserve  the  navigability  of  the  navigable  water  courses  of  the 
country  even  against  any  State  action.  It  is  true  there  have  been 
frequent  deci-sions  recognizing  the  power  of  the  State,  in  the  absence 
of  Congressional  legislation,  to  a-ssume  control  of  even  navigable 
waters  within  its  limits  to  the  extent  of  creating  dams,  booms, 
bridges,  and  <jther  matters  which  operate  as  obstructions  to  navi- 
gability. The  ix)wer  of  the  State  to  thus  legislate  for  the  in^(;;rests 
of  its  own  citizens  is  conceded,  and  untu  in  some  wayCongress 
a.-^scrts  Its  superior  ixnver,  and  the  necessity  "f  iMTTirrV^Pi  the 
general  interests  of  the  people  ol  ail  tne  States,  it  is  nssnmed  that 
State  action,  although  involving  temporarily  an  ol)struction  to 
the"lrernavitral)ilitv  of  a  stream,  is  not  subject  to  challenge.  .   .  . 

Ail  this  proceeds  upolTllu'  lllOUghl  lliat  the  non-action  of  Con- 
gress carries  with  it  an  implied  a.ssent  to  the  action  taken  by  the 
State.  .  .  . 

In  18GG  Congress  passed  the  Act  of  July  26,  1866,  c.  262,  §  9, 
14  Stat.  2.53;  Rev.  Stat.  §  2339.  .  .  . 

March  3,  1877,  an  Act,  c.  107,  was  passed  for  the  sale  of  desert 
lands.  ...    19  Stat.  377.  .  .  . 

()n  Marcli  3,  1891,  an  Act,  c.  561,  was  passed.  .  .  .    26  Stat. 

1101.  .  .  . 

Obviously  l)y  these  acts,  .so  far  as  they  extended,  Congre^ 
recognized  and  assented  to  the  appropriation  of  water  in  contra- 
vrntion  of  the  connnon  law  rule  as  to  continuous  tlow.  To  ijifer 
therefrom  that  Congress  intended  to  release  its  control  over, t he 
luivigablc  streams  of  the  country  and  to  grant  in  aid  ot  mining 
iiuTusTrTeramrthe  reclamation  of  arid  lands  the  right  to  appro- 
priate the  waters  on  the  sources  of  navigable  streams  to  such  an 
extent  as  to  destroy  their  navigability,  isjo^carry  those  statutes 
bevondvvhat  their  fair  import  permits.  .  .  . 

On  September  l9,  1890,  an  Act,  c.  907,  was  passed.  ...  26 
Stat.  454,  §  10.  .  .  . 

As  this  is  a  later  declaration  of  Congress,  so  far  as  it  modifies 
any  privileges  or  rights  conferred  by  prior  statutes,  it  must  be 
held  controlling,  at  least  as  to  any  rights  attempted  to  be  created 
since  its  passage;  and  all  the  proceedings  of  the  appellees  in  this 


1038     coMMKUci;;    dkcisions  sini  k  t  i.m.-^k  of  cimi.  w  \u. 

case  wrn-  sul>.s«'(|u«'nt  to  this  act.     This  act  (i«>flares  that  "the 

creation  of  any  obstruction,  not  affirmatively  authorized  by  law 

to  the  navigable  capacity  of  any  waters  in  resix-ct  to  which  the 

United  States  has  jurisdiction,  is  hereby  prohibited."     Whatever 

may  be  said  in  reference  to  obstructions  existing  at  the  time  of 

the  passage  of  the  act,  under  the  authority  of  State  statut«'s.  it  is 

obvious   that   Congress  meant   that   thereafter  no  State  should 

interfere  with  the  navigability  of  a  stream  without  the  condition 

of  national  assent.  ...     It  is  urged  that  the  true  construction  of 

this  act  limits  its  applicability  to  obstructions  in  the  navigable 

portion  of  a  navigable  stream,  and  that  as  it  appears  that  although 

the  Rio  Grande  may  l)e  navigable  for  a  c«Ttain  distance  alwvc  its 

mouth,  it  is  not  navigable  in  the  Territory  of  New  Mexico,  this 

statute  has  no  applicability.     The  language  is  grn*Tal.  ai»d  must 

b(>  giveilJuJJ^^sc^        It   is  not  a  pntliibinon  yi   ^.ny  oTTsTrnctioTTTo 

tlK-^mt^igationTl^l   tiny  obstruction  toThe  mivigablr  caparity. 

and  anyirimg.  wherever  done  or  however  done,  within  the  linuts 

of  (he  jurisdiction  of  the  I'niti'd  States  which  tends  to  destroy 

the  navigable  capacity  of  one  of  the  navigable  waters  of  the 

United  States,  is  widiin  the  terms  of  the  prohibition.   . 

The  creation  of  any  such  obstruction  may  U'  enjoined,  accord- 
ing to  the  last  provision  of  the  section,  by  proper  proceedings  in 
equity  under  tlu'  direction  of  the  Attorney  (leneral  of  the  United 
States,  and  it  was  in  pursuance  of  this  clause  that  these  proceed- 
ings were  commenced.  Of  course,  when  such  proceedings  are 
instituted  it  becomcvs  a  question  of  fact  whether  the  act  sought 
to  be  enjoined  is  one  which  fairly  anti  directly  tends  to  obstruct 
(that  is,  interfere  with  or  diminish)  the  navigable  cai)acity  of  a 
stream.  It  does  not  follow  that  the  courts  would  be  justified  in 
sustaining  any  proceeding  by  the  Attorney  General  to  restrain 
any  appropriation  of  the  upper  waters  of  a  navigable  stream. 
The  question  always  is  one  of  fact,  whether  such  appropriation 
substantially  interferes  with  the  navigable  capacity  within  the 
limits  where  navigation  is  a  recognized  fact.  In  the  course  of  the 
argimient  this  suggestion  was  made,  and  it  seems  to  us  not  un- 
worthy of  note,  as  illustrating  this  thought.  The  Hudson  River 
runs  within  the  limits  of  the  State  of  New  York.  It  is  a  navigable 
stream  and  a  part  of  the  navigable  waters  of  the  United  States, 
so  far  at  least  as  from  Albany  southward.  One  of  the  streams 
which  flows  into  it  and  contributes  to  the  volume  of  its  waters  is 
the  Croton  River,  a  non-navigable  stream.  Its  waters  are  taken 
by  the  State  of  New  York  for  domestic  uses  in  the  city  of  New 


ADDYSTON   PIPE   AND   STEEL   CO.    V.   UNITED   STATES.  1039 

York.  Unquestionably  the  State  of  New  York  has  a  right  to 
appropriate  its  waters,  and  the  United  States  may  not  question 
such  appropriation,  unless  thereby  the  navigability  of  the  Hudson 
be  disturbed.  On  the  other  hand,  if  the  State  of  New  York  should, 
even  at  a  place  above  the  limits  of  navigability,  by  appropriation 
for  any  domestic  purposes,  diminish  the  volume  of  waters,  which, 
flowing  into  the  Hudson,  make  it  a  navigable  stream,  to  such  an 
extent  as  to  destroy  its  navigability,  undoubtedly  the  jurisdiction 
of  the  National  government  would  arise  and  its  power  to  restrain 
such  appropriation  be  unquestioned;  and  within  the  purview  of 
this  section  it  would  become  the  right  of  the  Attorney  General  to 
irLstitute  proceedings  to  restrain  such  appropriation. 

Without  pursuing  this  inquiry  further  we  are  of  the  opinion 
that  there  was  error  in  the  conclusions  of  the  lower  courts;  that 
the  decree  must  l)e 

Reversed  and  the  case  remanded  with  instructions  to  set  aside 
the  decree  of  dismissal,  and  to  order  an  inquiry  into  the  ques- 
tion whether  the  intended  acts  of  the  defendants  in  the  con- 
struction of  a  dam  and  in  appropriating  the  waters  of  the 
Rio  Grande  will  substantially  diminish  the  navigability  of 
that  stream  within  the  limits  of  present  navigability,  and  if 
so,  to  enter  a  decree  restraining  those  acts  to  the  extent  that 
they  will  so  diminish. 
Gray  and  McKenna,  JJ.,  .  .  .  took  no  part  in  the  decision. 


ADDYSTON   PIPE   AND   STEEL  CO.   v. 
UNITED   STATES. 

Supreme  Court  of  the  United  States.     1899. 

[175  UnUed  Stales,  211.]' 

Appeal  from  the  United  States  Circuit  Court  of  Appeals  for 
the  Sixth  Circuit. 

In  the  United  States  Circuit  Court  for  the  Eastern  District  of 
Tennessee,  the  United  States,  under  the  Sherman  Anti-Trust 
Act  of  July  2,  1890  (26  Stat.  209),  prayed  an  injunction  against 
»  The  statement  has  been  rewTitten.  —  Ed. 


lUlU     c(j.mmeuce:    decisions  since  close  of  civil  war. 

certain  (Icfciulants  alleged  to  have  conspired  to  destroy  competi- 
tion among  themselves  in  interstate  selling  of  cast-iron  pipe. 
The  trial  court  dismissed  the  petition  (78  Fed.  712);  but  the 
judgment  was  reversed  in  the  Circuit  Court  of  Appeals  (54  U.  S, 
App.  723). 

Frank  Spurlock,  and  others,  for  appellants;  and  J.  K.  Richards, 
Solicitor  Cfcneral,  contra. 

Peckham,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Assuming,  for  the  purpose  of  the  argument,  that  the  contract 
in  question  herein  does  directly  and  substantially  operate  as  a 
restraint  upon  and  as  a  regulation  of  interstate  commerce,  itjs 
yet  insisted  ijy  the  appellants  at  the  threshold  of  the  inquiry  that 
b^ihe  true  construction  of  the  Constitution,  UKijif"'"^  '>f  ^^m- 
gress  to  regulate  interstate  p^mimprg^lTliniitedto  its  protection 
from  acts  of  int_erference  bv  State  Ict^sjaTion  or  hy  nutans  (TF  regu- 
lations made  uiuler  the  authority  of  the  State  by  some  political 
subdivision  thereof,  including  also  Congressional  power  over 
common  carriers,  elevator,  gas,  and  water  c()nii)ames,  for  PJ4l<5TJns 
stated  to  be  ])eculiar  to  such  carriers  and  companies,  l>iit  that  it 
does  not  include  the  general  power  to~interfere  with  or  i)r<)hil )it 
prjvate  contracts  "T)etween  citizens,  even  thouyh  such  contpiptx 
have  interstate  commerce  for  their  object,  and  result  in  a  direct 
an^  sub'stantial  obstruction  to  or  regulation  of  that  commerce. 

This  argument  is  founded  upon  the  assertion  that  the  reason 
for  vesting  in  Congress  the  power  to  regulate  commerce  was  to 
insure  uniformity  of  regulation  against  conflicting  and  discrimi- 
nating State  legislation;  and  the  further  assertion  that  the  Con- 
stitution guarantees  liberty  of  private  contract  to  the  citizen  at 
least  upon  commercial  subjects,  and  to  that  extent  the  guaranty 
operates  as  a  limitation  on  the  power  of  Congress  to  regulate 
commerce.  Some  remarks  are  quoted  from  the  opinions  of  Chief 
Justice  Marshall,  in  Gibbons  v.  Ogden,  9  Wheat.  1,  and  Bro^^^l  v. 
Maryland,  12  Wheat.  419,  and  from  the  opinions  of  other  justices 
of  this  court  in  the  cases  of  The  State  Freight  Tax,  15  Wall.  232, 
275;  Railroad  Company  v.  Richmond,  19  Wall.  584,  589;  Welton 
V.  Missouri,  91  U.  S.  275,  280;  Mobile  County  v.  Kimball,  102 
U.  S.  691,  697,  and  Kidd  v.  Pearson,  128  U.  S.  1,  21,  all  of  which 
are  to  the  effect  that  the  object  of  vesting  in  Congress  the  power 
to  regulate  interstate  commerce  was  to  insure  uniformity  of  regu- 
lation against  conflicting  and  discriminating  State  legislation. 
The  further  remark  is  quoted  from  Railroad  Company  v.  Rich- 
mond, supra,  that  the  power  of  Congress  to  regulate  commerce 


ADDYSTON   PIPE   AND   STEEL   CO.    V.   UNITED   STATES.  1041 

was  never  intended  to  be  exercised  so  as  to  interfere  with  private 
contracts  not  designed  at  the  time  they  were  made  to  create  im- 
pediments to  such  commerce.  It  is  added  that  the  proof  herein 
shows  that  the  contract  in  this  case  was  not  so  designed. 

It  is  undoubtedly  true  that  among  the  reasons,  if  not  the 
strongest  reason,  for  placing  the  power  in  Congress  to  regulate 
interstate  commerce,  was  that  which  is  stated  in  the  extracts 
from  the  opinions  of  the  court  in  the  cases  above  cited. 

The  reasons  which  ma}'  have  caused  the  framers  of  the  Consti- 
tution to  repose  the  power  to  regulate  interstate  commerce  in 
Congress  do  not,  however,  affect  or  limit  the  extent  of  the  power 
itself. 

In  Giblx)ns  v.  Ogden  (supra),  the  power  was  declared  to  be 
complete  in  itself,  and  to  acknowledge  no  limitations  other  than 
are  prescribed  by  the  Constitution. 

Under  this  grant  of  power  to  Congress,  that  body,  in  our  judg- 
ment, ma}'  enact  such  legislation  as  shall  declare  void  and  pro- 
hibit the  performance  of  anj'  contract  between  individuals  or 
corporations  where  the  natural  and  direct  effect  of  such  a  con- 
tract will  be,  when  carried  out,  to  directly,  and  not  as  a  mere 
incident  to  other  and  innocent  purposes,  regulate  to  any  substan- 
tial extent  interstate  commerce.  (And  when  we  speak  of  inter- 
state we  also  include  in  our  meaning  foreign  commerce.)  We  do 
not  assent  to  the  correctness  of  the  proposition  that  the  constitu- 
tional guaranty  of  liberty  to  the  individual  to  enter  into  private 
contracts  limits  the  power  of  Congress  and  prevents  it  from  legis- 
lating upon  the  subject  of  contracts  of  the  class  mentioned. 

The  power  to  regulate  interstate  commerce  is,  as  stated  by 
Chief  Justice  Marshall,  full  and  complete  in  Congress,  and  there 
is  no  limitation  in  the  grant  of  the  power  which  excludes  private 
contracts  of  the  nature  in  question  from  the  jurisdiction  of  that 
body.  Nor  is  any  such  limitation  contained  in  that  other  clause 
of  the  Constitution  which  provides  that  no  person  shall  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law.  It 
has  been  held  that  the  word  "liberty,"  as  used  in  the  Constitu- 
tion, was  not  to  be  confined  to  the  mere  liberty  of  person,  but 
included,  among  others,  a  right  to  enter  into  certain  classes  of 
contracts  for  the  purpose  of  enabling  the  citizen  to  carry  on  his 
business.  AUgej'er  v.  Louisiana,  165  U.  S.  578;  United  States  v. 
Joint  Traffic  Association,  171  U.  S.  505,  572.  But  it  has  never 
been,  and  in  our  opinion  ought  not  to  be,  held  that  the  word  in- 
cluded the  right  of  an  individual  to  enter  into  private  contracts 


1042     commkrce:    decisions  since  close  of  civil  war. 

upon  all  suhjcots,  no  matter  what  thoir  nature  ami  wholly  irre- 
spective (among  other  things)  of  the  fact  that  tliey  would,  if 
performed,  result  in  the  regulation  of  interstate  commerce  and  in 
the  violation  of  an  act  of  Congress  ui)on  that  sul)ject.  The  pro- 
vision  in  the  Constitution  doesjiot^^  as  we  believe,  exclude  Congress 
froTiT^egislaiing  w-itji^  regaRi  Jjj  conti^^  eLJtie  alx)vc  naiure 
wTnlTTn  the  exercise  of  its  constitutional  right  to  regulate  com- 
nierce^mohgThe^lates:  Oh  the  contrary^  we  think  the  provi- 
sion  regarding'the^tirjerty  of  the  citizen  is,  to  some  extent,  ijiiiited 
by  the  commerc~e  c-lausc  orTFie"Coiistitution,  and  that  the  power 
of  Congress  to" regilTtife  TnterstateToinmercc  ^ampri^sTKrnMght 
to  enacT^^w  prohibiting  the  citizen  iruin  eiiLeriug  iuloThose 
private  contracts"  which  directly_and__jiubit*«44tilly,  and  not 
merely  indfrectly,  remotely,  incidentally,  and  collaterally,  ^egii- 
late  la  aL4n:eat(£^i^l ess  (U'gret'_ CO ninuj^^ 

To  the  extent  that  the  present  decree  includes  in  its  scope  the 
enjoining  of  defendants  .  .  .  from  combining  in  regard  to  con- 
tracts for  selling  pip<-  in  their  own  State,  it  is  modihed,  and 
limited  to  that  portion  of  the  combination  or  agreement  which  is 
interstate  in  its  character.    As  thus  modified,  the  decree  is 

Affirmed. 


HANLEY  V.   KANSAS  CITY  SOUTHERN   RAILWAY  CO. 
Supreme  Court  of  the  United  States.     1903. 

[187  United  Slates,  617.1 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Arkansas. 

The  case  is  stated  in  the  opinion  of  the  court. 

C.  E.  Warner,  and  others,  for  appellants;  and  Gardner  Lathrop, 
and  others,  contra. 

Holmes,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity  brought  in  the  Circuit  Court  by  a  rail- 
way company  incorporated  under  the  laws  of  Missouri,  against 
th^  railroad  commissioners  of  Arkansas,  seeking  an  injunction 
agains^  their^xing  and_enforcing  certain Tates,  as  we  shalTex- 
plain.    The  bill  was  demurred  toTbfwahtTof  equity ,  the  demurrer 


HANLEY  V.   KANSAS   CITY   SOUTHERN  RAILWAY   CO. 


1043 


was  overmled,  and  a  decree  w^s_entered  for  the  plaintifL^he^ 
defendants  bring  the  case  here  by  appeal.     106  Fed.  Rep.  353. 

ThTplaintitf  owns  a  road  running  through  several  States  and 
Territories.     The  road  after  leaving  Missouri  runs  for  twenty- 
eight  miles  and  a  fraction  through  Arkansas  to  the  dividing  line 
between  that  State  and  the  Indian  Territory,  then  nearly  one 
hundred  and  twenty-eight  miles  in  the  Territory,  and  then  over 
one  hundred  and  seventeen  miles  in  Arkansas  again  to  Texas. 
There  is  also  a  branch  line  running  from  Fort  Smith,  in  Arkansas, 
to  Spiro,  in  the  Indian  Territory,  about  a  mile  of  which  is  in  the 
State  and  fifteen  in  the  Territory,  and  there  are  other  branches. 
Goods  were  shipped  from  Fort  Smith  by  way  of  Spiro  and  the 
road  in  the  Indian  Territory  to  Grannis,  in  Arkansas,  on  a  through 
bill  of  lading,  the  total  tlistance  being  a  little  more  than  fifty-two 
miles  in  Arkansas  and  nearly  sixty-four  in  the  Indian  Territory. 
For  this  the  railroad  company  charged  a  sum  in  excess  of  the  rate 
fixed  by  the  railroad  commissioners,  and  was  summoned  before 
them  under  the  State  law.    The  commissioners^^ 
company  was  liable  to  a  penalty  unaeTthe  State  statute,  assert 
t  heir  rigtit  to  fix  rates  for  continuous  transportationbet^een  two^ 
points  in  Arkansas,  even  when  a  large  part  ot  theroute  is  outside 
the  State  ITirougrTEe  Indian  TerT-iT/irv  orT^xas.  and  intemLto 
enfoF^Tcbmpliance  with  these  rates.     The  only  qu^on  argued 
and  the  only  one  ihai  we  shall  discuss  is  whether  the  action  oithe 
commis.sioners  is  within  the  powe^of  a  State,  ^TwFetlier  it  is^d 
as  interfering  witK  the  power  of"  Congress  ^^  rppnilafp  commerce 
among  the  several  States  and  with  the  Indian  tribes.    Smyth  v. 
Ames,  109  U.  S.  4GG,  517. 

It  may  be  assumed  that  this  power  of  Congress  over  commerce 
between  Arkansas  and  the  Indian  Territory  is  not  less  than  its 
power  over  commerce  among  the  States,  Stoutenburgh  v.  Hen- 
nick,  129  U.  S.  141;  and  the  distinction  hardly  is  important,  since 
the  appellants  are  asserting  similar  authority  where  the  loop  be- 
yond the  state  boundary  runs  through  Texa^.  We  may  bs  well 
add,  in  this  connection,  that  the  present  railroad  gets  the  author- 
itv  for  its  line  in  the  Indian  Territory,  through  a  predecessor  m 
title,  from  an  act  of  Congress  of  1893,  c.  169,  27  Stat.  487,  and 
that,  by  that  act.  Congress  "reserves  the  right  to  regulate  the 
charges  for  freight  and  passengers  on  said  railroad  .  .  .  until  a 
State  government  shall  be  authorized  to  fix  and  regulate  the 
cost,"  etc.;  "but  Congress  expressly  reserves  the  right  to  fix  and 
regu'late  at  all  times  the  cost  of  such  transportation  by  said  rail- 


1044       COMMERtE:     DECISIONS   SINCE   CLOSE   OF  CIVIL   WAK. 

road  or  said  company  whenever  sucli  traiLS|X)rtation  shall  extend 
from  one  State  into  another,  or  shall  extend  into  more  than  one 
State." 

It  may  be  assumed  further,  as  implied  hy  the  language  just 
quoted,  that  the  transixjrtation  in  the  present  ease  was  com- 
merce. See  also  the  act  of  February  4,  1S87,  c.  104,  §  1,  24  Stat. 
379;  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  19(),  203, 
and  Wabash,  St.  Louis  &  Pacific  Railway  Co.  v.  Illinois,  118  V.  S. 
557.  Transportation  for  others,  as  an  indepenilent  l)usin<'ss,  is 
commerce,  irrespective  ol  the  purpo.se  to ^'11  or  retain  the"g(3nd3 
whicliihe  o\vner  may  entertain  with  regard  to  them  after  tliey 
shairiiave  been  delivered!  '       "~ 

The  transportation  of  these  goods  certainly  went  outside  of 
Arkansas,  and  we  are  of  opinion  that  in  its  aspect  of  commerce  it 
was  not  confined  within  the  State.  Supp<3S<'  that  the  Indian 
Territory  were  a  State  and  should  try  to  regulate  such  traffic, 
what  would  stop  it?  Certainly  not  the  fiction  that  the  commerce 
was  confined  to  Arkansas.  If  it  could  not  interfere  the  only  reason 
would  !)('  that  this  was  commerce  among  the  States.  But  if  this 
commerce  would  have  that  character  as  against  the  State  sup- 
posed to  have  been  formed  out  of  the  Indian  Territory,  it  would 
have  it  equally  as  against  the  State  of  .Vrkansas.  If  one  could 
not  regulate  it  the  other  could  not. 

No  one  contends  that  the  regulation  could  be  split  up  according 
to  the  jurisdiction  of  State  or  Territory  over  the  track,  or  that 
both  State  and  Territory  may  regulate  the  whole  rate.  There 
can  be  but  one  rate,  fixed  by  one  authority,  whether  that  author- 
ity be  Arkansas  or  Congress,  ^\'abash,  St.  Louis  ct  Pacific  llail- 
way  Co.  V.  Illinois,  118  U.  S.  557;  Covington  &  Cincinnati  Bridge 
Co.  V.  Kentucky,  154  U.  S.  204;  Hall  v.  De  Cuir,  95  U.  S.  485. 
But  it  would  be  more  logical  to  allow  a  division  according  to  the 
jurisdiction  over  the  track  than  to  declare  that  the  subject  for 
regulation  is  indivisible,  yet  that  the  indivisibility  does  not 
depend  upon  the  commerce  being  under  the  authority  of  Con- 
gress, but  upon  a  fiction  which  attriljutes  it  wholly  to  Arkansas, 
although  that  fiction  is  quite  beyond  the  power  of  Arkansas  to 
enforce. 

It  is  decided  that  navigation  on  the  high  seas  between  ports  of 
the  same  State  is  subject  to  regulation  by  Congress,  Lord  v. 
Steamship  Co.,  102  U.  S.  541,  and  is  not  subject  to  regulation  by 
the  State,  Pacific  Coast  Steamship  Co.  v.  Railroad  Commissioners, 
9  Sawyer,  253,  and  although  it  is  argued  that  these  decisions  are 


HANLEY  V.   KANSAS   CITY   SOUTHERN   RAILWAY   CO.  1045 

not  conclusive,  the  reason  given  by  Mr.  Justice  Field  for  his  deci- 
sion in  the  last  cited  case  disposes  equally  of  the  case  at  bar. 
"To__bring  the  transportation  within  the  control  of  the  State^as 
part_o£its  doniestjc  commerce,  the  subject  transported  must  be 
within  the  entire  voyage  under  the  exclusive  jurisdiction  of  the 
State."  ~9~Sawyer7'2o8l  Decisions  in  point  are  State  v.  Chicago, 
^tTPaul,  Minneapolis  &  Omaha  Railway  Co.,  40  Minnesota,  267; 
Sternberger  v.  Cape  Fear  &  Yadkin  Valley  Railroad  Co.,  29  So. 
Car.  510.  See  also  Milk  Producers'  Protective  Association  v. 
Delaware,  Lackawanna  &  Western  Railroad  Co.,  7  Interstate 
Commerce  Rep.  92,  160,  161. 

There  are  some  later  State  decisions  contrary  to  those  last 
cited.  Campbell  v.  Chicago,  Milwaukee  &  St.  Paul  Railway  Co., 
86  Iowa,  587;  Seawell  v.  Kansas  City,  Ft.  Scott  &  Memphis  Rail- 
road Co.,  119  Missouri,  222;  Railroad  Commissioners  v.  Western 
Union  Telegraph  Co.,  113  No.  Car.  213.  But  these  decisions 
were  made  simply  out  of  deference  to  conclusions  drawn  from 
Lehigh  Valley  Railroad  Co.  v.  Pennsylvania,  145  U.  S.  192,  and 
we  are  of  opinion  tliat  they  carry  their  conclusions  too  far.  That 
was  the  case  of  a  tax  and  was  distinguished  expressly  from  an 
attempt  by  a  State  directly  to  regulate  the  transportation  while 
outside  its  borders.  145  U.  S.  204.  And  although  it  was  in- 
timated that,  for  the  purposes  before  the  court,  to  some  extent 
commerce  by  transjxjrtation  might  have  its  character  fixed  by 
t^e  relation  between  the  two  ends  of  the  transit,  the  intimation 
was  carefully  confined  to  those  purposes.  Moreover,  the  tax 
"was  drtcrmincd  in  respect  of  receipts  for  the  proportion  of  the 
transp<jrtation  within  the  State."  145  U.  S.  201.  Such  a  propor- 
tioned tax  had  been  sustained  in  the  case  of  commerce  admitted 
to  be  interstate.  Maine  v.  Grand  Trunk  Railway  Co.,  142  U.  S. 
217.  Whereas  it  is  decided,  as  we  have  said,  that  when  a  rate  is 
established,  it  must  be  established  as  a  whole. 

We  are  of  opinion,  jjiat  the. Jangu age  which  we  have  quoted 
from  "Mr.  Justice  Field  is  correct,  and  that  the  decree  of  the  Cir- 
cuit  Court  should  be  aflSrmed.  Qecree^rmed} 

1  Compare  Ewing  v.  Leavenworth,  226  U.  S.  464  (1913).  — Ed. 


1046     commerce:    decisions  since  close  of  civil  wau. 

LOTTERY  CASE. 
Supreme  Court  of  the  United  States.     1903. 

(1S8  United  Slates,  321.)' 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois. 

In  the  (irtuit  Court  ( 'hainj)ion_sued  out  a  writ jA^ habeas  corpus, 
complaining  that  he  was  restrained  of  his  liljerty  by  Ames,  United 
States  Marshal,  in  violation  of  the  Constitution  and  laws  of  the 
United  States.  Champion  was  in  custody  in  order  to  compel  his 
appearance  before  the  District  Court  of  the  United  States  for  the 
Northern  District  of  Texas,  to  answer  an  indictment,  under  the 
act  of  Confjjess  of  March  2^  181)5,  "for  the  suDpn-ssion  «)f_l<)ttery 
traffic  through  national  and  interstate  commerce  and  the  ix)stal 
service"  (28  Stat.  903).  The  indictment  charged  conspiracy  to 
cause  a  l)ox  or  package  of  lottery  tickets  —  printed  in  the  United 
States,  but  puriKjrting  to  l^e  issued  by  the  Pan-American  Lottery 
Company  of  Paraguay,  —  for  the  purix)se  of  disposing  of  the 
same,  to  l)e  carried  from  Dallas,  Texas,  to  Fresno,  California,  by 
the  Wells- Fargo  Express  Company,  a  corporation  engaged  in 
interstate  transportation  for  hire.  The ,conteutiuii. was  tjiatihe 
act  of  1895  was  void.  The  Circuit  Court  (lismi.s.sed  the  writ  of 
habeas  corpus. 

W.  1).  Guthrie,  for  appellants;  and  J.  M.  Heck,  Assistant  At- 
torney CJeneral,  contra. 

Harlan,  J.,  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

Undoubtedly,  the  carrj'ing  from  one  State  to  another  by  inde- 
pendent carriers  of  things  or  commodities  that  are  ordinary  sul)- 
jects  of  traffic,  and  which  have  in  themselves  a  recognized  value 
in  money,  constitutes  interstate  commerce.  But  does  not  com- 
merce among  the  several  States  include  something  more?  Does 
not  the  carrjnng  from  one  State  to  another,  by  independent 
carriers,  of  lottery  tickets  that  entitle  the  holder  to  the  payment 
of  a  certain  amount  of  money  therein  specified  also  constitute 
commerce  among  the  States?  .  .  . 

The  cases  .  .  .  show  that  commerce  among  the  States  em- 
braces navigation,  intercourse,  communication,  traffic,  the  transit 
of  persons,  and  the  transmission  of  messages  by  telegraph.  They 
also  show  that  the  power  to  regulate  commerce  among  the  sev- 

1  The  statement  hixs  been  shortened.  —  Ed. 


LOTTERY   CASE. 


1041 


eral  States  is  vested  in  Congress  as  absolutely  as  it  would  be  in  a 
single  government,  having  in  its  constitution  the  same  restric- 
tions on  the  exercise  of  the  power  as  are  found  in  the  Constitution 
of  the  United  States;  that  such  power  is  plenary,  complete  in  it- 
self, and  may  be  exerted  by  Congress  to  its  utmost  extent,  sub- 
ject only  to  such  limitations  as  the  Constitution  imposes  upon 
the  exercise  of  the  powers  granted  by  it;  and  that  in  determining 
the  character  of  the  regulations  to  be  adopted  Congress  has  a 
large  discretion  which  is  not  to  be  controlled  by  the  courts,  simply 
because,  in  their  opinion,  such  regulations  may  not  be  the  best 
or  most  effective  that  could  be  employed. 

We  come  then  to  inquire  whether  there  is  any  solid  foundation 
upon  which  to  rest  the  contention  that  Congress  may  not  regulate 
the  carr>'ing  of  lottery  tickets  from  one  State  to  another,  at 
least  by  corporations  or  companies  whose  business  it  is,  for  hire, 
to  carry  tangible  property  from  one  State  to  another. 

It  was  said  in  argument  that  lottery  tickets  are  not  of  any  real 
or  substantial  value  in  themselves,  and  therefore  are  not  subjects 
of  commerce.    If  that  were  conceded  to  be  the  only  legal  test  as 
to  what  are  to  be  deemed  subjects  of  the  commerce  that  may  be 
regulated  by  Congress,  we  cannot  accept  as  accurate  the  broad 
statement    that  such  tickets    are    of    no    value.  .  .  .  That    the 
holder  might  not  have  been  able  to  enforce  his  claim  in  the  courts 
of  anv  eountrv  making  the  drawing  of  lotteries  illegal,  and  for- 
bidding the  circulation  of  lottery  tickets,  did  not  change  the  fact 
that  the  tickets  issued  by  the  foreign  company  represented  so 
much  monev  pavable  to  the  person  holding  them  and  who  might 
draw  the  prizes  affixed  to  them.    Even  if  a  holder_did  not  draw  a 
prize,  the  tickets,  before  the  drawing,  had  a  money  value  iiTtEe 
fii;^i-^nf_3in;:^nKo  wh<-)  Chose  lo  sHl  orbuy  lottery  tickets.  .  .  . 
We  are  of  opinion  tFan^TTeTT'TTcketi'ifi  subjectg.on^'^ffi^ 
and  thrnton-  ar.  hiI.j.t,-   .,f  .■o,n.n..v,-,   ;..,,!   ihr  n-gulation _of 
the  carnage  ol  sucli  tickets  from  .Stale  tu  Siatc  ai   U-a-^t  by  ii> 
^oj^onfJPiMit_c^rriejs.  is  a  regulation  of  c(jiuin<i(v  aiiKJiig  the  several 

States.  1  J.    +u 

But  it^is  said  that  the  statute  in  question  does  not  regulate  the 
carrying  ^^TbTtery  tickets  from  State  to  State,  but  by  pumshing 
those  who  cause  them  to  be  so  carried  Congress  in  effect  prohibits 
such  carrving;  that  in  respect  of  the  carrying  from  one  State^ 
another  <.f  artirles  or  thin-s  that  are,  in  fart,  or  areordmg  to 
usa-rin  l.i^ii.-  tl."  .^ul.jeet^  of  r.nnnieree,  the  authority  given 
Con-'v..  w,~  UMt  lo  pr.lubU,  but  only  to  regulate^  This  view  was 


1048     commerce:    decisions  since  close  of  (  ivii.  \v.\u. 

earnestly  pressed  at  the  hiir  \>y  learned  counsel,  and  must  be 
examined. 

It  is  to  ho  remarked  that  the  Constitution  does  not  define 
what  is  to  be  deemed  a  legitimate  regulation  of  interstate  com- 
merce. In  Gibbons  v.  Ogdeii  it  was  said  that  the  |xjwer  to  regu- 
late such  commerce  is  the  power  to  prescribe  the  rule  by  which 
it  is  to  l)e  governed.  Hut  this  general  ob.servation  leaves  it  to  \xi 
determined,  when  the  (jucstion  comes  before  the  couit,  whether 
Congress  in  prescribing  a  particular  rule  has  exceeded  its  {xjwer 
under  the  Constitution.  While  our  government  must  Im?  ac- 
knowledged by  all  to  be  one  of  enumerated  |)ow<'rs,  Me( 'ulloch  v. 
Murylanil,  4  Wheat.  310,  40.3,  407,  the  Constitution  does  not 
attempt  to  set  forth  all  the  means  by  which  sucii  powers  may  l>e 
carried  into  excn'ution.  It  leaves  to  Congress  a  large  discreticm 
as  to  the  means  that  may  !"'  cinploycd  ir)  executing  a  given 
power.  .  .  . 

If  lottery  traffic,  carrietl  on  through  inUiMaie  commerce,  is  a 
matter  of  which  Congress  may  take  cognizance  and  over  which 
its  power  may  l>e  exerted,  can  it  Ih'  possible  that  it  must  tolerate 
the  traffic,  and  simply  regulate  the  manner  in  which  it  may  Ix? 
carried  on?  Or  may  not  Congress,  for  the  protection  of  the 
people  of  all  the  States,  and  under  the  power  to  regulate  inter- 
state commerce,  devise  such  means,  within  the  .scope  of  the  Con- 
stitution, ami  not  prohibited  by  it,  as  will  drive  that  traffic  out  of 
commerce  among  the  States? 

In  determining  whether  regulation  may  not  under  .some  cir- 
cumstances properly  take  the  form  or  have  the  efTect  of  prohibi- 
tion, the  nature  of  the  interstate  trafhc  which  it  wjis  sought  by 
the  act  of  May  2,  1895,  to  suppress  cannot  be  overlooked.  .  .  . 

If  a  State,  when  considering  legislation  for  the  suppression  of 
lotteries  within  its  own  limits,  may  jiroperly  take  into  view  the 
evils  that  inhere  in  tiie  raising  of  money,  in  that  mode,  why 
may  not  Congress,  invested  with  the  power  to  regulate  com- 
merce among  the  several  States,  provide  that  such  commerce 
shall  not  be  polluted  by  the  carrying  of  lottery  tickets  from  one 
State  to  another?  In  this  connection  it  must  not  be  forgotten 
that  th^f)..jy>ypr  of  Congress  to  regulate  commerce  among  the 
States  is  plenary^  is  completelnTFself,  and  is  subject  to  no  limi- 
tations except  such  as  may  be  found  in  tln'  ( 'oiistitution.  What 
provision  in  that  instniincui  ran  lie  i-('j.;ii-(lt(l  :i>  limiting  ihf  exer- 
cise of  the  power  granted'?  Wliat  elau>e  can  be  cited  which,  in 
any  degree,  countenances  the  suggestion  that  one  may,  of  right, 


LOTTERY  CASE.  1049 

carr>'  or  cause  to  be  carried  from  one  State  to  another  that  which 
■vvill  harm  the  pubHc  morals?  We  cannot  think  of  any  clause  of 
that  iiLstrument  that  could  possibly  be  invoked  b}'  those  who 
assert  their  right  to  send  lottery  tickets  from  State  to  State 
except  the  one  providing  that  no  person  shall  be  deprived  of  his 
liberty  without  due  process  of  law.  We  have  said  that  the  liberty 
protected  by  the  Constitution  embraces  the  right  to  be  free  in 
the  enjoyment  of  one's  faculties;  "to  be  free  to  use  them  in  all 
lawful  ways;  to  live  and  work  where  he  will;  to  earn  his  livelihood 
by  any  lawful  calling;  to  pursue  any  livelihood  or  avocation,  and 
for  that  purpose  to  enter  into  all  contracts  that  may  be  proper." 
Allgeyer  v.  Louisiana,  165  U.  S.  578,  589.  But  surely  it  will  not 
be  said  to  be  a  part  of  any  one's  liberty,  as  recognized  by  the 
supr('inc"^law  of  the  land,  that  he  shall  i"-  allowid  u>  introduce 
into  coiiiiiierce^  among  the  States  an  chnK  ut  that  wilL  be  con- 
f(--.Mlly  injurious  to~tTie  public  mora]^. 

If  it  be  saitl  tliat  the  act  of  1895  is  inconsistent  with  the  Tenth 
Amenthnent,  reserving  to  the  States  respectivelj'  or  to  the  people 
the  powers  not  delegated  to  the  United  States,  the  answer  is  that 
the  jKjwer  to  regulate  commerce  among  the  States  has  been  ex- 
pressly delegated  to  Congress. 

Besides,  Congress,  by  that  act,  does  not  assume  to  interfere 
with  traffic  or  commerce  in  lottery-  tickets  carried  on  exclusively 
within  the  limits  of  any  State,  but  has  in  view  only  commerce  of 
that  kind  among  the  several  States.  ...  In  legislating  upon  the 
sui>ject  of  the  traffic  in  lottery  tickets,  as  carried  on  through  in- 
terstate commerce,  Congress  only  supplemented  the  action  of 
those  States  —  perhaps  all  of  them  —  which,  for  the  protection 
of  the  public  morals,  prohibit  the  drawing  of  lotteries,  as  well  as 
the  sale  or  circulation  of  lottery  tickets,  \nthin  their  respective 
limits.  It  said,  in  effect,  that  it  would  not  permit  the  declared 
policy  of  the  States,  which  sought  to  protect  their  people  against 
the  mischiefs  of  the  lottery  business,  to  be  overthrown  or  disre- 
garded by  the  agency  of  interstate  commerce.  We  should  hesi- 
tate long  before  adjudging  that  an  evil  of  such  appalling  character, 
carried  on  through  interstate  commerce,  cannot  be  met  and 
crushed  by  the  only  power  competent  to  that  end.  ...  If  the 
carrying  of  lottery  tickets  from  one  State  to  another  be  inter- 
state commerce,  and  if  Congress  is  of  opinion  that  an  effective 
regulation  for  the  suppression  of  lotteries,  carried  on  through 
such  commerce,  is  to  make  it  a  criminal  offence  to  cause  lottery 
tickets  to  be  carried  from  one  State  to  another,  we  know  of  no 


lO.lO       tOMMKRCK:     DECISIONS   SINCE   CLOSE   OF   CIVIL   WAR. 

authority  in  tlie  courts  to  hold  that  the  moans  thus  devised  are 
U(»t  tii)proi)riut('  and  necessary  to  protect  the  country  at  hir^e 
against  a  sju'cies  of  interstate  commerce  wliich,  aitliouj^h  in  gen- 
eral use  antl  somewhat  favored  in  lx)th  national  and  State  legis- 
lation in  the  early  history  of  the  country,  has  grown  into  disrepute 
anil  has  become  offensive  to  the  entire  iH'oi)le  of  the  Nation.  It 
is  a  kind  of  traffic  which  no  one  can  be  entitled  to  pursue  as  of 
right. 

Tiiat  regulation  may  sometimes  appropriately  assume  the 
form  of  prohibition  is  also  illustrated  by  the  case  of  diseased 
cattle,  transported  from  one  State  to  another.  Such  cattle  may 
have,  notwithstanding  their  condition,  a  value  in  money  for 
some  purposes,  and  yet  it  cannot  l3e  doubted  that  Congress, 
uiidcr  its  power  to  regulate  commerce,  may  either  provide  for 
their  being  inspected  before  transixjrtation  begins,  or,  in  its  dis- 
cretion, may  prohibit  their  being  trans|)orted  from  one  State  to 
another.  .  .  . 

The  act  of  July  2,  1890,  known  as  the  Sherman  Anti-Trust  Act, 
and  wliich  is  based  upon  the  power  of  Congress  to  regulate  com- 
merce among  the  States,  is  an  illustration  of  the  proposition  that 
regulation  may  take  the  form  of  prohibition.  .  .  . 

It  is  said,  however,  that  if,  in  order  to  suppress  lotteries  car- 
ried on  through  interstate  commerce,  Congress  may  exclude  lot- 
tery tickets  from  such  commerce,  that  principle  loads  necessarily 
to  the  conclusion  that  Congro.ss  may  ari)itrarily  oxcludo  from 
commerce  among  the  States  any  article,  commodity  or  thing,  of 
whatever  kind  or  nature,  or  however  useful  or  valuable,  which  it 
may  choose,  no  matter  with  what  moti\o,  to  declare  shall  not  \ye 
carried  from  one  State  to  another.  It  will  be  time  enough  to 
consider  the  constitutionality  of  such  legislation  when  we  must 
do  so.  The  present  case  does  not  require  the  court  to  declare  the 
full  extent  of  the  power  that  Congress  may  exercise  in  the  regula- 
tion of  commerce  among  the  States.  We  may,  however,  repeat, 
in  this  connection,  what  the  court  has  heretofore  said,  that  the 
power  of  Congress  to  regulate  commerce  among  the  States,  al- 
though plenary,  cannot  be  deemed  arbitrarj',  since  it  is  subject 
to  such  limitations  or  restrictions  as  are  prescribed  by  the  Con- 
stitution. ... 

The  whole  subject  is  too  important,  and  the  questions  sug- 
gested by  its  consideration  are  too  difficult  of  solution,  to  justify 
any  attempt  to  lay  down  a  rule  for  determining  in  advance  the 
validity  of  every  statute  that  may  be  enacted  under  the  com- 


PENNSYLVANIA   RAILROAD   CO.   V.   KNIGHT.  1051 

merce  clause.  We  decide  nothing  more  in  the  present  case  than 
that  lottery  tickets  are  subjects  of  traffic  among  those  who  choose 
to  sell  or  buy  them;  that  the  carriage  of  such  tiokets  by  inde"- 
pendent  carriers  from  one  State  to  another  is  therefore  interstate 
commerce;  that  under  its  power  to  regulate  commerce  among  the 
several  States  Congress  —  subject  to  the  limitations  impnsoH  l^j' 
the  Constitution  upon  the  exercise  of  the  powers  granted  —  has 
plenary  authority  ovpr  snnh  nnnrmprnp^  anH  may_ prohibit  the 
carriageljf  such  ttdceTsTronTState  to  State:  and  that  legislation 
to  that  end,  and  of  that  character,  is  not  inconsistent  with  any 
limitation  or  restriction  imposed  upon  the  exercise  of  the  powers 
granted  to  Congress. 

The  judgment  is  4Mnn£d^ 

Fuller,  C.  J.,  with  whom  concur  Brewer,  Shiras,  and  Peck- 
ham,  JJ.,  dissenting.  .  .  . 


STATE  OF  NEW  YORK  ex  rel.   PENNSYLVANIA 
RAILROAD   CO.   v.   KNIGHT. 

SuPRELviE  Court  of  the  United  States.     1904. 
[192  United  States,  21.] 

This  is  a  writ  of  error  to  the  Supreme  Court  of  the  State  of 
New  York  to  review  a  judgment  of  that  court  affirming  the 
asses.sment  by  the  Comptroller  of  the  State  of  New  York  of  a  cer- 
tain tax  again.st  the  relator.  The  Pennsylvania  Railroad  Com- 
pany. The  contention  of  the  plaintiff  in  error  is  that  the  tax, 
which  is  a  franchise  tax  imposed  under  appropriate  statutes  of 
New  York  upon  the  company  for  carr>nng  on  the  business  of 
running  cabs  and  carriages  for  hire  between  points  entirely  within 
the  State  of  New  York,  is  invalid  under  the  interstate  commerce 
clause  of  the  Constitution  of  the  United  States,  article  I,  section 
8,  subdivision  3. 

The  facts  are  undisputed.  In  1897  the  company  established  a 
cab  stand  on  its  own  premises  at  the  Twenty-third  street  ferry 
in  the  city  of  New  York,  and  has  since  maintained  a  service  of 
cabs  and  coaches  under  special  licenses  from  the  city  of  New 

»  See  Hoke  v.  United  States,  227  U.  S.  308  (1913).  —Ed. 


1052     commerce:    decisions  since  close  of  civil  war. 

York,  whereby  they  can  stand  on  those  premises  only.  TTie  sole 
busirioss  done  by  those  cabs  and  coachi-s  is  to  brin^  the  com- 
pany's pa.ssengcrs  to  and  from  its  ferry  from  Twenty-third  street 
to  Jersey  City.  The  charges  for  this  service  are  separate  from 
those  of  the  company  for  further  transportation,  and  no  part  of 
its  receipts  from  the  cal)  service  is  received  as  comjH'nsation  for 
any  service  outside  the  State  of  New  York.  As  a  separate  busi- 
ness, this  cab  service  lias  not  been  profitable  to  the  comjiany,  but 
has  been  operated  at  a  loss.  The  vahcUty  of  this  tax  w:us  sustained 
both  by  the  Supreme  Court  and  the  Court  of  ApiK'als  of  New 
York.    67  App.  Div.  398;  171  X.  Y.  .354. 

//.  G.  Ward  and  another,  for  plaintiff  in  error;  and  John  Cun- 
neen,  Attorney  General  of  New  York,  contra. 

Brewer,  J.,  after  making  the  foregoing  statement,  delivered 
the  opinion  of  the  court. 

The  contention  of  the  company  is  that  this  cab  ser\'ice  is 
merely  an  extension  and  therefore  a  part  of  its  interstate  trans- 
portation; that  it  is  not  carr>'ing  on  a  cab  business  generally  in 
the  city  of  New  York,  but  is  merely  furnishing  the  service  to 
those  who  seek  to  take  over  it,s  lines  some  interstate  tran.sporta- 
tion,  thus  commencing  the  transportation  from  their  houses 
instead  of  from  the  ferry  landing,  or  like  service  to  those  who 
have  already  received  such  interstate  transportation,  thus  com- 
pleting the  transportation  to  their  places  of  destination;  that  the 
charaeter  of  the  i)usiness  remains  unchanged,  although  individ- 
uals may  avail  themselves  of  this  service  wlio  do  not  intend  or 
have  not  received  any  interstate  transportation,  for  they  who 
thus  use  the  service  do  so  wrongfully  and  against  the  wish  of  the 
company.  In  other  words,  the  company,  to  promote  its  general 
business,  seeks  only  to  complete  the  continuous  transportation 
of  interstate  passengers  to  or  from  their  residences  or  hotels  in 
New  York  city  instead  of  commencing  and  ending  such  trans- 
portation at  the  ferry  landing  at  Twenty-third  street;  the  char- 
acter of  the  service  depends  not  on  the  action  of  the  passenger, 
but  on  the  purpose  of  the  company  in  providing  it,  and  the 
omission  to  include  the  charge  for  the  cab  service  in  the  charges 
for  other  transportation  arises  from  the  practical  difficulty  of 
making  such  inclusion,  and  does  not  alter  the  fact  that  such  cab 
service  is  a  part  of  the  interstate  transportation. 

To  hold  the  even  balance  betwen  the  Nation  and  the  States  in 
the  exercise  of  their  respective  powers  and  rights,  always  difficult, 
is  becoming  more  so  through  the  growing  complexity  of  social 


PENNSYLVANIA  RAILROAD  CO.  V.   KNIGHT.  1053 

life,  and  business  conditions.  Into  many  relations  and  trans- 
actions there  enter  elements  of  a  national  as  well  as  those  of  a 
State  character,  and  to  determine  in  a  given  case  which  elements 
dominate  and  assign  the  relation  or  transaction  to  the  control  of 
the  Nation  or  of  the  State,  is  often  most  perplexing.  And  this 
case  fully  illustrates  the  perplexities. 

It  is  true  that  a  passenger  over  the  Pennsylvania  Railroad  to 
the  city  of  New  York  does  not  in  one  sense  fully  complete  his 
journey  when  he  reaches  the  ferry  landing  on  the  New  York  side, 
but  only  when  he  is  delivered  at  his  temporary  or  permanent 
stopping  place  in  the  city.  Looking  at  it  from  this  standpoint 
the  company's  cab  service  is  simply  one  element  in  a  continuous 
interstate  tran.sportation,  and  as  such  would  be  excluded  from 
State  and  be  subject  to  national  control.  The  State  may  not 
tax  for  the  privilege  of  doing  an  interstate  commerce  business. 
Atlantic  &  Pacific  Telegraph  Company  v.  Philadelphia,  190  U.  S. 
IGO.  On  the  other  hand,  the  cab  service  is  exclusively  rendered 
within  the  limits  of  the  city.  It  is  contracted  and  paid  for  inde- 
pendently of  any  contract  or  payment  for  strictly  interstate 
transportation.  The  party  recei\ing  it  owes  no  legal  duty  of 
crossing  the  State  line. 

Undoubtedly,  a  single  act  of  carriage  or  transportation  wholly 
within  a  State  may  be  part  of  a  continuous  interstate  carriage 
or  transportation.  Goods  shipped  from  Albany  to  Philadelphia 
may  be  carried  by  the  New  York  Central  Railroad  only  within 
the  limits  of  New  York,  and  yet  that  service  is  an  interstate 
carriage.  By  reason  thereof  the  Nation  regulates  that  carriage, 
including  the  part  performed  by  the  New  York  company.  But 
it  does  not  follow  therefrom  that  the  New  York  company  is 
wholly  relieved  from  State  regulation  and  State  taxation,  for  a 
part  of  its  work  is  carriage  and  tran.sportation  begun  and  ended 
within  the  State.  So  the  Pennsylvania  company,  which  is  en- 
gaged largely  in  interstate  transportation,  is  amenable  to  State 
regulation  and  State  taxation  as  to  any  of  its  service,  which  is 
wholly  performed  within  the  State  and  not  as  a  part  of  interstate 
transportation.  Wherever  a  separation  in  fact  exists  between 
transportation  service  wholly  \nthin  the  State  and  that  between 
the  States  a  like  separation  may  be  recognized  between  the  con- 
trol of  the  State  and  that  of  the  Nation.  Osborne  v.  Florida,  164 
U.  S.  650;  Pullman  Co.  v.  Adams,  189  U.  S.  420. 

As  we  have  seen,  the  cab  service  is  rendered  wholly  within  the 
State  and  has  no  contractual  or  necessary  relation  to  interstate 


10')  1       ( OM.MKUi  I. .      IM.<  l-^ION'S   SINCE   CLOSE   OF   CIVIL   WAR. 

trunsportatiijii.  It  is  cither  preliminary  or  subsequent  thereto. 
It  is  independently  contracted  for,  and  not  necessarily  connected 
therewith.  But  when  service  is  wholly  within  a  State,  it  is  pre- 
sumably subject  to  State  control.  The  burden  is  on  him  who 
asserts  that,  though  actually  within,  it  is  legally  outsrfie  the 
State;  and  unless  the  interstate  character  is  established,  locality 
determines  the  question  of  jurisdiction.  Coe  v.  Errol,  IIG  U,  S. 
517,  though  not  in  all  respects  similar,  is  vor>'  closely  in  point.  .  .  . 

As  shown  in  the  opinion  from  which  we  have  just  (juoted, 
many  things  have  more  or  less  clo.<»e  relation  to  interstate  com- 
merce, which  are  not  proj><>rly  to  be  n'garded  as  a  part  of  it.  If 
the  cai)  which  carries  the  p:ussengers  from  the  hotel  to  the  ferr>' 
landing  is  engaged  in  interstate  transportation,  why  is  not  the 
])()rter  wl»o  carries  the  traveller's  trunk  from  his  room  to  the 
carriage  also  .so  engaged?  If  the  cab  service  is  interstate  trans- 
portation, are  the  drivers  of  the  cabs  and  the  dealers  who  supply 
liay  and  grain  for  the  horses  also  engaged  in  interstate  commerce? 
And  where  will  the  limit  be  placed? 

We  are  of  opinion  that  the  cab  service  is  an  inde])en(lent  lofal 
service,  preliminary  or  subsequent  to  any  interstate  transporta- 
tion, and  therefore  the  judgment  of  the  Supreme  Court  of  the 
State  of  New  York  was  correct,  and  it  is 

Affirmed. 


THE  EMPLOYERS'   LIABILITY  CASES. 
Supreme  Court  of  the  United  States.     1908. 

(207  Uniled  Stntes,  463.1 ' 

Error  to  the  Circuit  Courts  of  the  United  States  for  the 
Western  District  of  Tennessee  and  the  Western  District  of 
Kentucky. 

Each  of  the  actions  was  based  upon  the  death  of  a  locomotive 
fireman  solely  through  the  fault  of  fellow  servants.  Each  man 
was  injured  while  moving  an  interstate  commerce  train.  The 
])laintiffs  relied  upon  the  act  of  Congress  of  July  11,  1906,  "relat- 
ing to  liability  of  conmion  carriers  in  the  District  of  Columbia 

'  A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


THE   employers'   LIABILITY   CASES.  1055 

and  Territories  and  common  carriers  engaged  in  commerce  be- 
tween the  States  and  between  the  States  and  foreign  nations  to 
their  employes"  (32  Stat.  232).  The  act  in  question  abolished 
for  such  carriers  the  defences  of  the  fellow-servant  rule,  assump- 
tion of  risk,  and,  A\-ith  limits,  contributory  negligence.  In  each 
case  the  constitutionality  of  the  act  was  assailed  by  demurrer, 
and  the  act  wagJiddamconstitutional. 

\V.  R.  Harr  and  others/Tor  plaintiffs  in  error;  C.  J.  Bonaparte, 
Attorney  General  of  the  United  States,  as  amicus  curiae;  and 
J.  M.  Dickinson  and  others,  for  defendants  in  error. 
White,  J.,  delivered  the  opinion  of  the  court.  .  .  . 
We  think  the  orderly  discussion  of  the  question  may  best  be 
met  by  disposing  of  the  affirmative  propositions  reUed  on  to  estab- 
lish that  the  statute  conflicts  with  the  Constitution. 

In  the  first  place,  it  is  asserted  that  there  is  a  total  want  of 
power  in  Congress  in  any  conceivable  aspect  to  regulate  the  sub- 
ject with  which  the  act  deals.  In  the  second  place,  it  is  insisted 
the  act  is  void,  even  although  it  be  conceded,  for  the  sake  of 
argument,  that  some  phases  of  the  subject  with  which  it  is  con- 
cerned may  be  within  the  power  of  Congress,  because  the  act  is 
confined  not  to  such  phases,  but  asserts  control  over  many  things 
not  in  any  event  within  the  power  to  regulate  commerce.  ... 

1  The' proposition  that  there  is  an  absolute  want  of  poWer  in 
Congress  to  enact  the  statute  is  based  on  the  assumption  that  as 
the  statute  is  solelv  addressed  to  the  regulation  of  the  relations 
of  the  employer  to  those  whom  he  employs  and  the  relation  of 
those  emploved  bv  him  among  themselves,  it  deals  with  subjects 
which  cannot  under  any  circumstances  come  within  the  power 
conferred  upon  Congress  to  regulate  commerce.  ... 

The  test  <jf  power  is  not  merely  the  matter  regulated,  but 
whether  the  regulation  is  directly  one  of  interstate  commerce,  or 
is  embraced  within  the  grant  conferred  on  Congress  to  use  all 
l-nvful  means  necessary  and  appropriate  to  the  execution  of  the 

power  to  regulate  commerce We  fail  to  perceive  any  just 

reason  for  holding  that  Congress  is  without  power  to  regulate  the 
relation  of  ma-ster  and  ser^'ant,  to  the  extent  that  reflations 
adopted  by  Congress  on  that  subject  are  solely  confined  to  inter- 
state commerce,  and  therefore  are  .sithin  the  grant  to  regulate 
that  commerce  or  within  the  authority  given  to  use  all  means 
appropriate  to  the  exercise  of  the  powers  conferred.  To  illustrate: 
Take  the  case  of  an  interstate  railway  train,  that  is,  a  train  mov- 
ing in  interstate  commerce,  and  the  regulation  of  which  therefore 


10r)G     roMMERCK:    oki  isions  since  close  of  civil  wau. 

is,  in  the  naturt'  of  things,  a  repuiation  of  such  eoninuTce.  It_c{m- 
not  !)('  said  that  because  a  regulation  afloptt-d  l»y  r'(tri«rn'><s_^s  to 
such  train  when  so  engaged  in  intt^st.ttr  (oinini  ir,  di  .ilswith 
th^  relation  ol  the  master  to  the  servants  optjulinj;  such  train  or 
thrTelations  of  the  servtTnls  engaged  in^  such  (>^)eirat ion  In^ween 
theniselves^that  it  is  not  a  reguhition  of  interstate  eoniinerce. 
-^PhisTnTIst  be,  since  to  adfTltt  file  auThority  to  regulate  such  train, 
and  yet  to  say  that  all  regulations  which  deal  with  the  relation 
of  master  and  ser\'ants  engaged  in  its  ojx'ration  are  invalid  for 
want  of  power  would  be  but  to  concede  the  power  and  then  to 
(h'liy  it.  or  at  all  events  to  recognize  the  power  and  yet  to  render 
it  incoini)lete. 

Because  of  the  reasons  just  stated  we  might  well  pass  from  the 
consideration  of  the  subject.  We  add,  liowever,  that  we  think 
the  error  of  the  ijroposition  is  shown  by  j)revious  decisions  of  this 
QOOixT  1  luis  me  UIllll  111'  |liUVer  in  a  ^tate  to  interfere  with  a n 
interstate  commerce  train,  if  thereby  a  direct  burden  is  imposed 
U]ion  interstate  commerce,  is  settled  beyond  (luestion.  Missis- 
sipi)i  R.  R.  Co.  v.  Illinois  Cent.  R.  R..  203  U.  S.  335,  343,  and 
cases  cited;  Atlantic  Coa.st  Line  R.  R.  v.  Wharton  et  al..  Railroad 
Commissioners,  207  U.  »S.  328.  .  .  .  And  a  like  conclusion  al.so 
persuasively  results  from  jirevious  rulings  of  this  court  concern- 
ing tile  act  of  Congress,  known  jis  the  Safety  A])pliance  Act. 
Johnson  v.  Southern  Pacific  Co.,  190  U.  S.  1 ;  Schlemmer  v.  HufTalo, 
Rochester,  etc.  Ry.,  205  U.  S.  1. 

2.  But  it  is  argued,  even  though  it  be  conceded  that  the  power 
of  Congress  may  be  exercised  as  to  the  relation  of  master  and 
servant  in  matters  of  interstate  commerce,  that  power  cannot  be 
lawfully  extended  so  Ss  to  include  the  regulation  of  the  relation 
of  master  and  servant,  or  of  servants  among  theiiLselves,  as  to 
things  which  are  not  interstate  commerce.  From  this  it  is  in- 
sisted tlie  repugnancy  of  the  act  to  the  Constitution  is  clearly 
shown,  as  the  face  of  the  act  makes  it  certain  that  the  power 
which  it  asserts  extends  not  only  to  the  relation  of  master  and 
servant  and  servants  among  themselves  as  to  things  which  are 
wholly  interstate  commerce,  but  embraces  those  relations  as  to 
matters  and  things  domestic  in  their  character  and  which  do  not 
come  within  the  authority  of  Congress.  To  test  this  proposition 
requires  us  to  consider  the  texi  of  the  act. 

From  the  first  section  it  is  certain  that  the  act  extends  to  e^'erv 
indixiduaLor  corporation  who  may  engage  in  interstate  commerc£ 
as  a  common  carrier.  .  .  .  Stated  in  another  form,  the  statute  is 


THE   EMPLOYERS     LIABILITY   CASES.  1057 

addressed  to  the  individuals  or  corporations  who  are  engaged  in 
interstate  commerce  and  is  not  confined  solely  to  regulating  the 
interstate  commerce  business  which  such  persons  may  do  —  that 
is,  it  regulates  the  persons  because  they  engage  in  interstate 
commerce  and  does  not  alone  regulate  the  business  of  interstate 
commerce. 

And  the  conclusion  thus  stated,  which  flows  from  the  text  of 
the  act  concerning  the  individuals  or  corporations  to  which  it  is 
made  to  apply,  is  further  demonstrated  by  a  consideration  of  the 
text  of  the  statute  defining  the  servants  to  whom  it  relates. 

Thus  the  liability  of  a  conunon  carrier  is  declared  to  be  in 
favor  of  "any  of  its  employes."  As  the  word  "any"  is  unquali- 
fied, it  follows  that  liability  to  the  servant  is  co-extensive  with 
the  business  done  by  the  employers  whom  the  statute  embraces; 
that  is,  it  is  in  favor  of  any  of  the  employes  of  all  carriers  who 
engage  in  interstate  commerce.  This  also  is  the  rule  as  to  the 
one  who  otherwise  would  be  a  fellow  servant,  by  whose  negligence 
the  injury  or  death  may  have  been  occasioned,  since  it  is  pro- 
vided that  the  right  to  recover  on  the  part  of  any  servant  will 
exist,  although  the  injury  for  which  the  carrier  is  to  be  held 
resulted  from  "the  negligence  of  any  of  its  officers,  agents  or 
employes." 

The  act  then  being  addressed  to  all  common  carriers  engaged 
in  interstj^tc_coinmerce,  and  imposmg  a  liaTMlTty  upon  _them  in 
favor  of  any  of  their  employes,  without  qualification  or  restric- 
tion  as  to  the  business  in  which  the  carriers  or  their  employes 
may  be  engaged  ai  ihe  i ime  ot  the  mjuTyTljf  necessity  includes 
suTnects  wholly  nutsulp  ot  t[ie  power  ^f  Confrrpg^  t^  rn^^Jj^o 
conimorcc.  Without  stopping  to  consider  the  numerous  instances 
"^•here  although  a  common  carrier  is  engaged  in  interstate  com- 
merce such  carrier  may  in  the  nature  of  things  also  transact 
business  not  interstate  commerce,  although  such  local  business 
may  indirectly  be  related  to  interstate  commerce,  a  few  illustra- 
tions showing  the  operation  of  the  statute  as  to  matters  wholly 
independent  of  interstate  commerce  will  serve  to  make  clear  the 
extent  of  the  power  which  is  exerted  by  the  statute.  Take  a  rail- 
road engaged  in  interstate  commerce,  having  a  purely  local 
branch  operated  wholly  within  a  State.  Take  again  the  same 
road  having  shops  for  repairs,  and  it  may  be  for  construction 
work,  as  well  as  a  large  accounting  and  clerical  force,  and  having, 
it  may  be,  storage  elevators  and  warehouses,  not  to  suggest  be- 
sides the  possibility  of  its  being  engaged  in  other  independent 


1058     commerce:   decisions  since  close  of  civil  war. 

enterprises.  Take  a  telegraph  company  engaged  in  the  trans- 
mission of  interstate  and  local  messages.  Take  an  express  com- 
pany engaged  in  local  a.s  well  as  in  interstate  bu.siness.  Take  a 
trolley  line  moving  wholly  within  a  State  as  to  a  large  part  of  its 
business  and  yet  as  to  the  remainder  crossing  the  State  line. 

As  the  act  thus  includes  many  subjects  wholly  beyond  the 
power  to  regulate  commerce  and  depends  for  its  .sanction  upon 
that  authority,  it  results  that  the  act  is  repugnant  to  the  Con- 
stitution, and  carmot  be  enforced  unless  there  be  merit  in  the 
propositions  advanced  to  show  that  the  statute  may  be  saved.  .  .  . 

We  .  .  .  pass  for  a  moment  the  consideration  of  the  proposi- 
tion that  the  statute  is  constitutional,  though  it  includes  all  the 
subjects  which  we  have  found  it  to  embrace,  in  order  to  weigh 
the  contention  that  it  is  susceptible  on  its  face  of  a  different 
meaning  from  that  which  we  have  given  it,  or  that  .such  result 
can  be  accomplished  by  the  apjilication  of  the  rules  of  interpre- 
tation which  are  relied  upon. 

So  far  as  the  face  of  the  statute  is  concerned,  the  argument  is 
this,  that  because  the  statute  says  carriers  engaged  in  commerce 
between  the  States,  etc.,  therefore  the  act  should  be  interpreted 
as  being  exclusively  applicable  to  the  interstate  commerce  busi- 
ness and  none  other  of  .such  carriers,  and  that  the  words  "any 
employ^"  as  found  in  the  statute  should  be  held  to  mean  any 
employ6  when  such  employ^  is  engaged  only  in  interstate  com- 
merce. But  this  would  require  us  to  write  into  the  statute  words 
of  limitation  and  restriction  not  found  in  it.  But  if  we  could 
bring  ourselves  to  modify  the  statute  by  writing  in  the  words 
suggested  the  result  would  be  to  restrict  the  operation  of  the  act 
as  to  the  District  of  Columbia  and  the  Territories.  .  .  .  The 
legislative  power  of  Congress  over  the  District  of  Columbia  and 
the  Territories  being  plenary  and  not  depending  upon  the  inter- 
state commerce  clause,  it  results  that  the  provision  as  to  the 
District  of  Columbia  and  the  Territories,  if  standing  alone,  could 
not  be  questioned.  Thus  it  would  come  to  pass,  if  we  could  bring 
ourselves  to  modify  the  statute  by  writing  in  the  words  suggested ; 
th^t  is.ljy  causing  the  act  to  read  "any  employ^  when  engaged 
in  mferstate  commerce,"  we  would  restrict  the  art  as  to  the 
District  of  Columbia  and  the  Territories,  and  thus  destroy  it  in 
an  important  particular.  To  write  into  the  act  the  quaUfying 
words,  therefore,  would  be  but  adding  to  its  provisions  in  order 
to  save  it  in  one  aspect,  and  thereby  to  destroy  it  in  another; 
that  is,  to  destroy  in  order  to  save  and  to  save  in  order  to  destroy. 


THE   employers'   LIABILITY   CASES.  1059 

The  principles  of  construction  invoked  are  undoubted,  but  are 
inapplicable.  Of  course^  if  it  can  be  lawfully  done,  our  dut}^  is 
to  construe  the  statute  so  as  to  render  H  c^^i«titntir.nn1  ptnt^ 
this  does  not  imply,  if  the  text  of  an  ant  is  nnambipinoyf^,  ^^q^jl, 
may  be  rewritten  to  accomplish  that  purpose      Equally  clear  is 


it,  g(^nerally  speaking,  that  where  a  statute  contains  proyisions 
which  are  constitutional  and  others  which  are  not,  effect  may 
be  giyen  to  the  legal  proyisions  by  separating  them  from  the  il- 
legal. But  this  applies  only  to  a  case  where  the  provisions  are 
separable  and  not  dependent  one  upon  the  other,  and  does  not 
support  the  contention  that  that  which  is  indivisible  may  be 
divided.  Moreover,  even  in  a  case  where  legal  provisions  may  be 
severed  from  those  which  are  illegal,  in  order  to  save  the  rule 
appUes  only  where  it  is  plain  that  Congress  would  have  enacted 
the  legislation  with  the  unconstitutional  provisions  ehminated. 
All  these  principles  are  so  clearly  settled  as  not  to  be  open  to 
controversy.  They  were  all,  after  a  full  review  of  the  authorities, 
restated  and  reapplied  in  a  recent  case.  Illinois  Central  Railroad 
V.  McKendree,  203  U.  S.  514,  and  authorities  there  cited.  .  .  . 

We  are  unable  to  say  that  the  statute  would  have  been  enacted 
had  its  provisions  been  restricted  to  the  linuted  relations  of 
that  character  which  it  was  within  the  power  of  Congress_lo 

reguTate.  .  •  • 

3.  It  remains  only  to  consider  the  contention  .  .  .  thatj:he 
act  is  constitutional^although  it  embraces  subjects  not  within 
thp  power  ot  Conpjress  to  regulate  commerce,  because  one  who 
engages  in  interstate  commerce  thereby  submits  all  his  business 
concerns  to  the  regulating  power  of  Congress.  To  state  the 
proposition  is  to  retute  it.    It  assumesthat  because  .one  engages 


irr  lntei^tate'"commerce  he  thereby  endows  Congress  with  power 
not^delegated  to  itjw  the  Constitution,  in  other  words,  with  the 
right  tcr-legislaIe""concerning  matters  of  purely  Statp  concprn. 
It  rests  "upoiT  the  conception  that  the  Constitution  destroyed 
that  freedom  of  commerce  which  it  was  its  purpose  to  preserve, 
since  it  treats  the  right  to  engage  in  interstate  commerce  as  a 
privilege  which  cannot  be  availed  of  except  upon  such  conditions 
as  Congress  may  prescribe,  even  although  the  conditions  would 
be  otherwise  beyond  the  power  of  Congress.  It  is  apparent  that 
if  the  contention  were  well  founded  it  would  extend  the  power  of 
Congress  to  every  conceivable  subject,  however  inherently  local, 
would  obliterate  all  the  limitations  of  power  imposed  by  the 
Constitution,  and  would  destroy  the  authority  of  the  States  as 


1000     commerce:    decisions  since  close  of  civil  wak. 

to  ;ill  conceivahlc  matters  which  from  the  beginning;  have  been, 
uihI  must  c'oiitinuo  to  ho,  under  their  control  so  lonj^  jis  the 
Const  it  ut  ion  enc  hires.  .  .   . 

We  deem  it  unnecessary  to  pass  upon  the  merits  of  the  conten- 
tions concerning;  the  alleged  rej)UKnancy  of  the  statute,  if  regarded 
as  otherwise  vaUd,  to  the  due  process  clause  of  the  Fifth  Amend- 
ment to  the  Constitution,  because  the  act  classifies  together  all 
common  carriers.  .  .  .  Affirmed.^ 

Day,  .1.,  concurs  in  the  opinion, 

Pkckiiam,  .1.,  concurring. 

I  concur,  in  the  result  .  .  .  hut  I  am  not  prepared  to  agree 
with  all  that  is  stated  as  to  the  power  of  Congress  to  legislate 
upon  the  sui)ject  of  the  relations  between  master  and  servant.  .  .  . 

I  am  authorized  to  state  that  the  Chief  Justice  and  Mr. 
Justice  Breweii  agree  in  this  view. 

Moody,  J.,  dissenting.  .  .  . 

Harlan,  J.  (with  whom  concurred  McKenna,  J.),  dissent- 
ing. .  .  . 

Holmes,  J.,  dissenting.  .  .  . 


HOUSTON,   EAST  AND  WEST  TEXAS   RY.   CO. 
V.   UNITED  STATES. 

Supreme  Court  of  the  United  States.     1914. 

[234  United  Stales,  342.1 « 

Appeals  from  the  Commerce  Court. 

'^J^'ti^  wprp  l^j-^iiprht  in  the  Coimiierce  Court  to  set  aside  an 
order  of  the  Interstate  Commerce  Commission  to  the  effect  that 
the  railways  in  interest  should  desist  from  charging  higher  rates 
from  Shrcvcport,  Louisiana,  to  Dallas  or  Houston,  Texas,  and 
intermediate  points,  than  for  transporting  the  same  commodity 
from  Dallas  or  Houston  toward  Shreveport  for  equal  distances  (23 

1  See  Adair  v.  United  States,  208  U.  S.  161  (1908);  and  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1  (1912).  —  Ed. 

^  With  this  case  was  heard  Texas  &  Pacific  Ry.  Co.  v.  United  States. 
The  two  cases  are  often  called  collectively  the  Shreveport  case. 

A  statement  has  been  framed  upon  the  opinion  of  the  court.  —  Ed. 


HOUSTON,   EAST  AND  WEST  TEXAS  RY.   CO.  V.  UNITED  STATES.    1061 

I  C  C  31,  46-48).  Shreveport  is  about  40  miles  from  the  Texas 
line  and  is  231  miles  from  Houston  and  189  miles  from  Dallas. 
Shreveport  competes  ^snth  both  cities  for  the  trade  of  the  mter- 
vening  territory.  The  rates_cjwsed^frompallas  and  Houst^ 
re'^pectively,  eastward  to  jntermedmTTTotTrts  in  Texasj^^ 
much  less,-according  to  distance,  than  from  Sjireyeportwest- 
warT^JhTi^r^mtir'^^  t^ 

petifimisJ205  Fed.  380). 

lf\LGanvood  and  others,  for  appellants;  and  Demson,  Assist- 
ant Attorney  General,  and  others,  contra. 

Hughes,  J.,  delivered  the  opinion  of  the  court.  ... 
There  are,  it  appears,  commodity  rates  fixed  by  the  Railroad 
Commission  of  Texas  for  intrastate  hauls,  which  are  substantially 
less  than  the  class,  or  standard,  rates  prescribed  by  that  Com- 
mission- and  thus  the  commodity  rates  charged  by  the  carriers 
from  Dallas  and  Houston  eastward  to  Texas  points  are  less 
than  the  rates  which  they  demand  for  the  transportation  of  the 
same  articles  for  like  distances  from  Shreveport  into  Texas.  The 
present  controversy  relates  to  these  commodity  rates.  . 

The  point  of  the  objection  to  the  order  is  that,._ag_the.Jiscrimi- 
nation  found  by  the  Commission_to3eJUniust  ^ises_out_QUhe 
relatioirZ[ntIMtatej:M£5*.niaintained  under  State  authoritji^O-, 
intGistatlUiatestha^^  upheld  as  reasonable   its  correc- 

tion^^^^^^S^^aThTC^nssion's  power.  Manifestly  t^  order 
might  be  complied  with,  and  the  discrimination  avoided  either 
by  reducm05£jnMEli^^ 

rates'tTt^vel  of  the  inierl^t^tFT^tir^^  such  reduction  in 
thTTne  case  and  increase  in  the  other  as  would  result  in  equality^ 
liut  it  is  urgedjhat,  soJai^^Ohe  interstatf  ratP^  were  sustained 
bv  the  Commission  as  reasonable^theCommission  was^  without 

aurtiorttvToTomnenMliSEH!!^^ 

wasTHaT  the  ordirrdl^v^  the  appellants  from  further  obliga- 
tion to  obser^'e  the  intrastate  rates  and  that  they  were  at  liberty 
o  complv  with  the  Commission's  requirements  by  increasing 
hese  rat^s  sufficiently  to  remove  the  forbidden  discrimination, 
'n^l;  n..Hdity  of  the  order  in  Ihi^spPPt  is  challenged  upQlU^o 

^  That  Congress  is  impotent  to  controHhemtra^t^^ 
of  an  intersMe^er^ev^lU^^ 
inj7;;ri^^;;]i^diiSI^h^^    against  interstate  traffic;  and^ 


10G2     ((jmmeuck:    deciskj.n.-.  >i.nce  close  of  <  i\ii.  w  au. 

(2)  'J'hatj  if  it  Ih'  Ji.s.suiueLLtiiaLX\)ngrt'ss  has  this  power,  still 
itjias  jiot  been  exercised^nd  hence  the  action  Tirt he  CVinrnls- 
sion  exceeded  the  limits  of  the  authority  whicli  has  been  con- 
ferred upon  it. 

First.  It  is  unnecessary  to  repeat  what  has  frequently  bren 
said  by  this  court  with  respect  to  the  complete  and  i)aramount 
character  of  the  power  confided  to  Congress  to  regulate  com- 
merce among  the  .several  States.  It  is  of  the  essence  of  this 
power  that,  where  it  exists,  it  dominates.  Interstate  trade  was 
not  left  to  be  destroyed  or  impeded  by  the  rivalries  of  local  gov- 
ernments. The  purpose  was  to  make  impo.ssible  the  recurrence 
of  the  evils  which  had  overAvhelmed  the  ( 'onfederaticjii  and  to 
provide  the  necessary  basis  of  national  unity  by  insuring  "  uni- 
formity of  regulation  against  conflicting  and  discriminating  State 
legislation."  Hy  virtue  of  the  comprehensive  terms  of  the  grant, 
th£  authority  of  Congress  is  at  all  times  adequate  to  meet  the 
varyfng  exigencies  rhflt  M\kv  Ah(l  toj)rotect  the  national  mTerest 
by_securn  i|r_t  hc^ivecIoTiT^r  jUtij^UlIii^^ 
from  local  control.  GiClwns  v.  Ogden,  1)  Wheat.  1,  196,  224; 
Brown  r.  Maryland,  12  Wheat.  410,  440;  County  of  Mobile  v. 
Kimball,  1U2  U.  S.  (391,  U9(j,  097;  Smith  v.  Alabama,  124  U.  S. 
45,  473;  Second  Employers'  Liability  Cases,  223  U.  S.  1,  47,  53, 
54;  Minnesota  Hate  Cases,  230  U.  S.  352,  398,  399. 

Congress  is  empowered  to  regulate,  —  that  is,  to  provide  the 
law  for  the  government  of  interstate  conmierce;  to  enact  "all 
appropriate  legislation"  for  its  "protection  and  advancement" 
(The  Daniel  Hall,  10  Wall.  557,  504);  to  adopt  measures  "  to  jiro- 
mote  its  gro^\ih  and  insure  its  safety"  (County  of  Mobile  v. 
Kimball,  supra);  "  to  foster,  protect,  control  and  restrain  "  (Sec- 
ond Employers'  Liability  Cases,  supra).  Its  autjjority,  rxt^''^[- 
\n&^  these  interstate  carriers  n>^  ir],>>|ninuMits  nf  inf^rwfr,fo 
enmmercP,  ^PPP^Qarilj^r  Am>^|.^^^^c|  |he  right  tn  nnntrnl  thejf  Qp^rn- 
tions  in  all  matters  having  -ik  1i  .i  close  and  substantial  relation 
to  interstate  traffic  that  the  j:L"'trul  is  essential  or  appropriate  to 
the^ecuritv  of  tli.it  traffic,  to  the  efficiency  of  the  interstate  serv- 
ice, and  to  the  maintenance  of  contlitions  under  which  interstate 
conmierce  may  be  conducted  upon  fair  terms  and  without  moles- 
tation or  hindrance.  As  it  is  competent  for  Congress  to  legislate 
to  these  ends,  unquestionably  it  may  seek  their  attainment  by 
requiring  that  the  agencies  of  interstate  commerce  shall  not  be 
used  in  such  manner  as  to  cripple,  retard  or  destroy  it.  Thefact 
that  carriers  are  instruments  of  intrastate  commerce,  as  welTas 


HOUSTON,  EAST  AND  WEST  TEXAS  RY.   CO.  V.  UNITED  STATES.    1063 

of  interstate  rommerce,  does  not  derogate  from  the  complete  and 
p^r^T^TT^TTHTiuthority  of  Congress  over  the  latter  or  preclude  the 
Federal  power' from  being  exert  edjopre  vent  the  intrastj^teogera- 
tions' of  such  can-iersJrorn_being^ma^_a_meanro^  injuiy  to  that 
which  ^har5e"en  confidedJoJEfidfiiaL^are.  Wherever  the  inter- 
state ancTTntrastate  transactions  of  carriers  are  so  related  that 
the  government  of  the  one  involves  the  control  of  the  other,  it  is 
Congress,  and  not  the  State,  that  is  entitled  to  prescribe  the  final 
and  dominant  rule,  for  other^vise  Congress  would  be  denied  the 
exercise  of  its  constitutional  authority  and  the  State,  and  not  the 
Nation,  would  be  supreme  wthin  the  national  field.  Baltimore 
&  Ohio  Railroad  Co.  v.  Interstate  Commerce  Commission,  221 
U.  S.  612,  618;  Southern  Railway  Co.  i'.  United  States,  222  U.  S. 
20,  26.  27:  Second  Employers'  Liability  Cases,  supra,  pp.  48,  51; 
Interstate  Commerce  Conunis.sion  v.  Goodrich  Transit  Co.,  224 
U.  S.  194,  205,  213;  Minnesota  Rate  Cases,  supra,  p.  431;  Illinois 
Central  Railroad  Co.  v.  Behrens,  233  U.  S.  473. 

In  Baltimore  &  Ohio  Railroad  Co.  v.  Interstate  Commerce 
Commi-ssion,  supra,  the  argument  against  the  vaUdity  of  the 
Hours  of  Ser^^ce  Act  (March  4,  1907,  c.  2939,  34  Stat.  1415) 
involved  the  consideration  that  the  interstate  and  intrastate  trans- 
actions of  the  carriers  were  so  interwoven  that  it  was  utterly  im- 
practicable for  them  to  divide  their  employes  so  that  those  who 
were  engaged  in  interstate  commerce  should  be  confined  to  that 
commerce  exclusively.  Employes  dealing  with  the  movement  of 
trains  were  employed  in  both  sorts  of  commerce;  but  the  court 
held  that  this  fact  did  not  preclude  the  exercise  of  Federal  power. 
As  Congress  could  limit  the  hours  of  labor  of  those  engaged  m 
interstate  transportation,  it  necessarily  followed  that  its  will 
could  not  be  frustrated  by  prolonging  the  period  of  service 
through  other  requirements  of  the  carriers  or  by  the  commingling 
of  duties  relating  to  interstate  and  intrastate  operations.  Again, 
in  Southern  Railwav  Co.  v.  United  States,  supra,  the  question 
wa-s  pr.sentecljNietherLJLll£.^ii^^ 

Act  (March  2,  19037^-.  976,  32  Stat.  943)  wagjaihin  t,hp  PO^i^ 
of  Congress  in  view  of  the  fact  that  the  statute  waB^ot.cflfl^a£tl 
tp-ygMd^that  were  used  in  interstate  tri35bbut  also  embraced 
.v,^o  ,wpd  in  intra^st^tTt^ffic.  The  court  mmm<^  affirmatively, 
i;^:^^:^  there  was  such  a  d^e  relation^f-tween  the  two  classes 
of  tr'^ffiTmovrng  oveV  the  same  r-^Irffln.^  tn  mnkP  lUrPJ^m 
^t,at  the  "itrty  -*  n^^nA^^^^M^^^jT^c^nd  of  those  emEloied  in 
its  movement,  w^iild  be  promot^dmjisaLand  substaat/ftl  sense 


1004     commerce:   decisions  since  close  of  civil  war. 

by  applying  the  requirements  of  the  act  to  both  classes  of  vehicles. 
SopTn  the  Second  Employers  ~T!TabIIity  Cases,  supra,  it  wa.s  in- 
sisted that  while  Congress  had  the  authority  to  regulate  the  lia- 
bility of  a  carrier  for  injuries  sustained  by  one  employ6  through 
the  negligence  of  another,  where  all  were  engaged  in  interstate 
commerce,  that  power  did  not  embrace  instances  where  the  neg- 
ligent emj)loy(5  was  engaged  in  intrastate  commerce.  The  court 
said  that  this  was  a  mistaken  theory,  as  the  causal  negligence 
when  operating  injuriously  upon  an  employ<^  engaged  in  inter- 
state connncrce  had  the  same  efTect  with  respect  to  that  com- 
merce as  if  the  negligent  employ(5  were  also  engaged  therein. 
The  decision  in  Kmployers'  Liability  Cjises,  207  V.  S.  408,  is  not 
o])posed,  for  the  statute  there  in  (juestion  (.hine  11,  11K)0,  c.  3073, 
34  Stat.  232)  sought  to  regulate  the  liability  of  interstate  carriers 
for  injuries  to  any  employe  even  though  his  employment  had  no 
connection  whatever  with  interstate  coiiiiimtcc.  (See  Illinois 
Central  R.  R.  Co.  r.  Behrens,  supra.) 

While  these  decisions  sustaining  the  Fechral  power  relate  to 
measures  adopted  in  the  interest  of  the  .safety  of  persons  and 
property,  they  illustrate  the  principle  that  Congress  in  the  exer- 
cise of  its  paramount  ]>ower  may  prevent  the  conmion  instnnnen- 
talities  of  interstate  and  intrastate  commercial  intercourse  from 
being  used  in  their  intrastate  operations  to  the  injury  of  interstate 
commerce.  This  is  not  to  say  that  Congress  possesses  the  author- 
ity to  regulate  the  internal  commerce  of  a  State,  as  such,  but 
that  it  does  possess  the  power  to  foster  and  protect  interstate 
commerce,  and  to  take  all  measures  necessarj'  or  appropriate  to 
that  end,  although  intra.state  transactions  of  interstate  carriers 
may  thereby  be  controlled. 

This  principle  is  ap])licable  here.  We  find  np  reason  to  tloubt 
that  Congress  is  entitled  to  keep  the  highwavs  of  interstate  mm- 
munication  open  to  interstate  traffic  upon  fair  and_ef]2i-''|  terras. 
That  an  unjust  discrnnination  in  the  rates  of  a  common  carrier, 
by  w^hich  one  person  or  locality  Is  unduly  tavored  as  against  an- 
other  under  substantially  similar  conditions  of  trattic,  constitutes 
an  evil  is  undeniable;  and  where  this  evil  consists  m  thp  nctipn 
of  an  interstate  carrier  in  unreasonably  discriminating  against 
interstate  traffic  over  its  line,  the  authority  of  Congress  to  pre- 
vent it  is  equally  clear.  It  is  immaterial,  so  far  as  the  protecting- 
power  ot  Congress  is  concerned,  that  the  discrimination  arises 
from  intrastate  rates  as  compared  with  interstate  rates.  The  use 
of  'ttie  instrument  ot  interstate  commerce  in^  discriminatory 


HOUSTON,  EAST  AND  WEST  TEXAS  RY.  CO.  V.  UNITED  STATES.    1065 

manner  so  as  to  inflict  injury  upon  that  commerce,  or  some  part 
thereof,  furnishes  abundant  ground  for  Federal  intervention. 
Nor  can  the  attempted  exercise  of  State  authority  alter  the  matter, 
where  Congress  has  acted,  for  a  State  may  not  authorize  the 
carrier  to  do  that  which  Congress  is  entitled  to  forbid  and  has 
forbidden.  .     . 

It  is  also  to  be  noted  —  as  the  Government  has  well  said  m  its 
argument    in    support    of   the    Commission's    order  — that    the 
power  to  deal  with  the  relation  between  the  two  kinds  of  rates,  as 
a  relation,  lies  exclusively  wth  Congress.    It  is  manifest  that  the 
State  cannot  fix  the  relation  of  the  carrier's  interstate  and  intra- 
state charges  ^v^thout  directly  interfering  with  the  former,  unless 
it  simply  follows  the  standard  set  by  Federal  authority.     This 
question  was  presented  with  respect  to  the  long  and  short  haul 
provision  of  the  Kentucky  constitution,  adopted  in  1891,  which 
the  court  had  l>efore  it  in  Louisville  &  Nashville  R.  R.  Co.  v. 
Eubank  184  U.  S.  27.    The  State  court  had  construed  this  pro- 
vision a!s  embracing  a  long  haul,  from  a  place  outside  to  one 
within  the  State,  and  a  shorter  haul  on  the  same  line  and  m  the 
same  direction  between  points  within  the  State.    This  court  held 
that   so  construed,  the  provision  was  invalid  as  being  a  regulation 
of  interstate  commerce  because  "  it  linked  the  interstate  rate  to 
the  rate  for  the  shorter  haul  and  thus  the  interstate  charge  was 
directlv  controlled  bv  the  State  law."    See  230  U.  S.,  pp.  428,  429. 
It  ;.•  f/^.  ^v>n^r...  to  sunolv  the  needed  correction  where  th^j^la- 
.•..•:rn:^wrrn  intrastate  and  interst^t^jjate^  prftiCIlt^  th(,-  ^vil  to 
be  T^^^^^^X.  an.l  this  it  mav  do  cWkl^-'Y  ^'V  ^^N"^^^^^  ^^^  ^^^,""" 
^nv^Tngr  thp  intcTstate  carrier  in  all  matterUinnn"-  ^H^-h  fl  riose 
anJi:;Tb^ntial  relation  to  interstate  commerce  that  it  is  neces- 
sarTT^nii^opriate  to  exercise  the  control  for  the  effective  gov- 
crrrment  oilTiat  commerce.  .    ■     ^• 

R  is  also  clear  that,  in  removing  the  injurious  discriminations 
against  interstate  traffic  arising  from  the  relation  of  intrastate 
to  interstate  rates.  Congress  is  not  bound  to  reduce  the  latter 
below  what  it  may  deem  to  be  a  proper  standard  fair  to  the 
carrier  and  to  the  public.  Otherwise,  it  could  prevent  the  injury 
to  interstate  commerce  only  by  the  sacrifice  of  Its  judgment  as 
to  interstate  rates.  Congress  is  entitled  to  maintain  its  own 
standard  a^  to  these  rates  and  to  forbid  any  discriminatory  action 
bv  interstate  carriers  which  wall  obstruct  the  freedom  of  move- 
nient  of  interstate  traffic  over  their  lines  in  accordance  with  the 
terms  it  estabUshes. 


1000     commerce:    decisions  since  close  of  civil  war. 

Having  this  power,  ConRress  could  provide  forjte  execution 
througirTIi(Mun~oral<uT^^  cyiicludL'  tiuiUtho 

order  of  The  TTTinmission  now  in  question  cannot^  l)e  laid  invalid 
upon  the  gromul  that  It  exceeded  the,aUtliority_yvhuJLX!o"grt^ 
couU  Tawifiilly  cj)nfer. 

SecoluTT  The  remaining  cjuestion  is  with  regard  to  the  scope 
of  the  power  whieli  (\)ngress  has  granted  to  the  Commiiwion.  .  .  . 

Affirmed.^ 

LuRTON  and  Pitney,  JJ.,  dissent. 

>  See  McDermott  t-.  \Vi.sconMin,  228  U.  S.  115  (1913);  Atlantic  Coast  Line 
R.  Co.  I'.  Georgia,  234  U.  S.  280  (1914);    and    IlIinoi.M  O-ntnil  H.  Co.  v. 

Fuonfos,  2;m  r.  s.  i.-.?  (unrt). 

C<)inp:irc  .South  Covington  &  Cincinnati  Street  Ry.  Co.  r.  Covington,  235 
U.  S.  537  (1915);  Cornrll  SteanilKJUt  Co.  (State  of  New  York  ex  rel.)  v. 
St)hiner,  235  l'.  S.  .549  (1915);  Hemirick  c  Maryland,  235  l.  S.  tilO  (1915); 
Wilmington  Tran.six)rtation  Co.  r.  Railroad  C-onunis.sion.  '2'.HS  V.  S.  151 
(1915);  Heynian  r.  Hays,  23(i  U.S.  17H  (1915);  and  Mutual  Film  Corpora- 
tion V.  Indu.strial  Conuni-swion,  236  U.  S.  230  (1915).  —  Ed. 


INDEX. 


Admiralty   jurisdiction,    90S-910,   946- 

95<).  964-967.  1035-1039. 
Advisorv  opiniona,  90-98. 

Al.i.-k;i."jl'l    2i>'.>. 

\  'O.  •.'lS-221.  561-563. 

A  16-1'0. 

\  ■  '"<'»-l()42. 

\  ".t)-560. 

A  776-780. 

Aui  Uwiiccra,  'JJl»    'Jil. 

B.^NK.  119-130.  707-710.  803-808. 

Bar.  ni.mbere  of.  433-436.  537-540.  582- 

.^.S7. 
)'."     '       '  -      v'>  4S9.  556-560.  587-623. 
I  (_•  .S45,  860-863. 

I.  911-913. 

Hii.iu..-,.  .il4  .iJl.  329-332. 
liuiMiiiK  lines,  718-721. 

Citizens.  85-90.  188-191.  196-201,  524- 

563,  925-928.  942-946. 
Civil  War.  .^s  71.  14 1-148.  433-4.36. 
Ciiloriial  cliartfr.  7    13. 
Colonial  Kovcrnnu'nt,  7-13.  16-20. 
Commerre.    17(V-l.'v'i,   547.550,   665-672, 

742-750.  80SM5.  S67-1066. 
Competition,    721-730.    756-762,    1039- 

1042. 
Confederation,  Artirles  of,  ix-xv. 
Con<iue«t.  16-20.  201-207. 
Con.spiracy.  10.30-10.34.  1039-1042. 
Constitution  of  the  United  Statea,  x\i- 

xxxi. 
Consular  court,  222-226. 
Contempt,  72-81,  595-600. 
Contract  clause,  269-424,  707-710,  S49- 

860. 
Corporations.     119-1.30,    279-2S7.    308- 

311,    314-.321,    3.32-.3.34.    .346-.348. 

.353-.356,   378-.387.   418-422.   676- 

6.sf).  7SO-784.  942-946,  997-1002, 

1020-10.30. 
Counterfeit  money.  846-848. 
County  seat.  369-374. 

D.\MS.  899-900.  10.35-10.39. 

DejKirtation,  85-90.  561-563. 

Direct  taxes.  793-799,  815-837. 

Di.-itrict  of  Columbia.  188-189,  210-221. 

Divorce.  387-392. 

Due  process  of  law.  524-787. 

Duties    on    imports.    201-207,    229-243. 

886-898,  936-941,  950-952,  960- 

963. 
Eminent  domain,  151-154,  329-3.34,  469- 

474. 


Equal  protection  of  the  laws,  624-787. 

E\'idence,  460-463,  608-616. 

Excise  taxes,  793-803,  822-826,  837-841. 

And  see  Licenses  and  Liquor. 
Executive  powers,  1-103. 
Ex  post  facto  laws,  425-468. 

Feder.\l  government:    the  Nation  and 

the  States,  104-187. 
Ferries.  314-321.  930-933. 
Fish.  680-686. 

And  see  Oyster  fisheries. 
Franchises.  707-710.  953-958,  1051-1054. 
And    see    Corpor.\tions,    Ferries, 
Licenses,  and  T.^xation. 

Gr-vnd  jury.  587-595,  623-630. 

Habe\.%  corpus,  58-66,  158-164. 

Hawaii.  244-248,  262-264. 

Health.  525-537.  656-665,  672-676,  686- 

692.  694-707,  811-812. 
Homestead,  359-362. 
Hours  of  labor,  656-659,  686-692,  701- 

707. 

Imports,  201-207,  229-243,  886-898, 
936-941,  950-952,  960-963. 

Imprisonment  for  debt,  378-381. 

Income  ta.xes,  815-821. 

Indians,  93-98,  196-201,  276-278,  550- 
555. 

Information,  prosecution  by,  587-595. 

Inheritance  tax,  164-169,  771-776,  826- 
837 

Initiative.  99-103. 

Insolvency  law.  287-292,  297-304. 

Insular  possessions,  229-243,  265-267. 

Insurance,  422-424,  756-762,  942-946. 

Interstate  commerce  statute,  1060-1066. 

JcDCMENT  as  creating  obligation,  392- 
396. 

Judicial  powers.  1-103. 

.Jury    21-22.  210-214.  222-229,  244-248, 
254-259,  457-460,  477-478,  485- 
489,  572-573,  600-608,  623-634. 
And  see  Grand  jury. 

Legal  tender.  849-860. 

Legislative  powers,  1-103. 

Licenses,  169-175,  249-254,  418-422, 
572-573,  659-665,  785-787,  799- 
803,  867-886,  911-913,  923-928, 
936-946,  960-963,  1006-1020, 
1026-1030. 

Liquor,  169-175,  595-600,  651-656,  665- 
672,  799-803,  1006-1020. 

Lotteries.  374-378,  483-485,  1046-1051. 


1067 


l()(iS 


I.VDKX. 


Mahitime    jurJjKlirtion.    90A-912.    WS- 
960,  9«V4-y67.  1036-1039. 

MtirriaKo.  3H7  392.  47>»-4H3. 

Miirtiiil  law.  46-54.  5H-6a. 

Militury  Kovoriuuent.  46-64.  6H-71.  206 
207. 

Militia.  33  3.^,  46-64.  6H-66.  666-660. 

MiliiHterial  duty.  23-33,  42-46.  82-86. 
259-262. 

M<. »..•).  711   714. 

Mdhi-y.  119    i:<().  K()3-WJS,  842-866. 

Municipal  churtor,  3,  13   16. 

Nation  and  Stateii.  4&-64.  60-71.  104- 
1H7.    3.50  :i5.s,    .309  374,    6-17  550. 

799- WJ.'J.  .S20  .K.17.  M«V  K4J*.   103O- 
1042,   1040    1051,   1054-1000. 

Odlujatkj.s  of  contracta,  269-424,  H49- 

OliMjiuarKariiif.  072-076. 
Orrliiiancf  of  17s7.  1^7 
Original  pa.^  Ml,  9.10- 

9.J.',  '"  '.    1020. 

Oy.stiT  fiBhcri.    ,  ....    ./.....  .-..    ■_■%. 

Pa.vama  canal,  259-262. 

Parliariicnt,  1   3. 

I'a.x.-<ciijji'rs  in  ships,  900-907. 

lV<lill«T.s.  9r.O  903. 

Pion.iKc  513  516. 

PhilippinoH.  243. 

PilotaKc,  913  922,  92H  929.  9.M   '.•;{(•, 

Police  power,  374   37.S,  454  457,  409  474. 

47.H  4S5.   525  537.   596  000.   ti-15 

741,  SI  I   ,S12,  H9U-907.  1006-1020, 

10-10   1051. 
Politi<-!il    (lucstions.    1-3,    33  41.    40  71. 

141    145. 
PolvKarnv.  47.S  4S.3. 
Porto  Kico.  229  243.  206-267. 
Portw,  934-930. 

.\n(l  s)i-  Pii,()TA(iF.  and  Qi'arantine. 
Po.st  office,  ,S2   .So.  4S3  4.S5. 
Po.st  road.H,  971   975,  lO.JO   1034. 
President   of   the    I'nite*!   Statea,   33-3S, 

40  71.1  .")S   1  (U ,  205-207. 
PrivilcKirt  .'ind  inununities.  524-623. 

.\nil  Si-f  (  "ITIZKN'."*. 

Priv\-  Council,  7    13. 
Procedure,  4:{7  447,  504  010.  OHO-686. 
And  ntf  Di'K  pu<)(E.H.s,  Haiiea8  cor- 

prs,  ("iKA.Nn  JiuY.  and  .Iiry. 
Public  callinKs,   572-^573,   (WU  044,   707 

710.    742-702.    9.5s  900,    907-970. 

991-997.  1003-1006. 

QuARA>mNE.  811-812.  986-990. 
Quasi-contract.  392-396. 

Race  discrimination.  .572-573.  617-650, 
059-005,  7S5-791,  907-970. 

Railway  rates,  751-755.  958-960.  991- 
997,  1042-1045,  1000-1066. 

Religion,  478-483. 


Rrpuhlican  form  of  govemment,  46-54, 

9^-10.3. 
Uetrottctivi-  liiwji,  .304-307.  396-401. 

And  ««'«•  K.X  poMT  fAt-To  uawh. 
Hivern.  176   1S3,  s07  8M0,  923  U26.  IMO- 

950.  904-970.  9H1-990.  1036   1(XJ9. 

.'<AL.\niE-H  of  offjciala.  335-338. 

.Sanieri.  ,5<»«»-r,!3 

."^•If-ii  ■  ir,. 

^^v«r  laJ  and  unron- 

:uu«.     788-791, 

1054    lUttO. 
Slavprv.  13,5  !4n  3.50-.368.  474-476,  491- 

793-799. 
Solit a  449-454.  463-406. 

St  .r,  .,    412  4 IH.  466-408. 

'.  176-IS3. 
.  104    110,  130-135, 
in    llN.    171.   1H3.    190-201,   338- 
340,  .s<M>  SO.!. 
State  capital.  Is4    l.s7. 
Stati-a    and    Nation.      S*«    Natios*    and 

St\te*«. 
.-         ■  rV  liability,  37H-381. 

;  ;{s7. 

.- tax.  UVl    169. 

SutTragr.  541-647,  550-556,  788-791. 

TvwTiMV     110  10-1-175, 

-■  .'.   :<.j  ,11,   310- 

.11.',    .;jN  ......       i.    4<m  412, 

707  710,  7iU  7s7.  7U3-MI.  sm- 
s»V<     'Ml    913.    9.30  Ml.    950  9.5S. 

•si    990,  997-1002.  lO-JO- 

1    10.VI. 

A...  .\H**E-HM\ir.NTrt.        DrT1E*«, 

1- HA.VCIIIMC.H,       InHKUITANCE      TAX, 

I.i(EN?*r.H.     ToNNAOE     Tax,     ami 

TnAN>«r»:K    TAX. 

TelcKraph.  971    975.  KKKl    lOCXV 

Territories.  UK)  I'.Ml,  207  210.  227-229, 
244  259,  202  2«'>4,  457-460,  478- 
4s:i.    js.-i    |s'»    491    600. 

TonnaRc  t  i  '. 

Torts..  071.  '07.  979-9H1.  1003- 

IIH).. ;•,».  1064    1000. 

.\nd   nf   U  DiiKiNOME.v   and   Work- 
men's  roMPKNSATIO.V   ACTH. 

Trade-nuirks,  97.5  979. 

Transfer  tax.  HV4    109.  771-776,  826-837. 


Vaccination,  694-7 


""■  (^>^5'/4 


War.  201-207.  5.50  500. 

And  xre  .\nnexation.  Civil  War, 
CoNgrE.sT,  IIahea.s  corpus.  Mar- 
tial LAW.  Military  govern- 
ment, and  Militia. 

Water  supply.  401-405. 

WorkinKUien.  (VS6-692,  701-707.  7.30-741, 
10.54-1000. 

Workmen's  compensation  acts,  730-734, 
1054-1060. 


AA 


000  800  069 


'vJv.  .v.'!'/'.'//,'.' vXv 

.^r^VJvi'iw'.'  •'""'/'; ■I'i'V'''  tV-';''-"  r'  ■ 
/."T;-  •;■'.•  '•;.;•  ■'"■  '  -."•''"i;'";. ■<•/..  ^.T.  ...     . 


